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KD ,
Cornell University Law
Library
The Moak Collection
PURCHASED FOR
1
The School of Law of Cornell University
And Presented February 14,
1893
IN HEnORY OF
JUDGE DOUGLASS BOARDMAN
FIRST OEAN OF THE SCHOOL
By his Wife and Daugliter
A. M. BOARDMAN and ELLEN D. WILLIAMS
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THE
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^'"^liuteini'iMimiui,?''*''' "' ^' Court of
3 1924 021 727 890
JUDGMENTS AND OEDEKS
THE COURT OF APPEAL AND HIGH
COURT OF JUSTICE,
CHIEFLY IN BEFEEENCB TO
ACTIONS ASSIGNED TO THE CHANCEEY DIVISION.
BY
LOFTUS LEIGH M:MBBRT0N,
ONE OP THE KEQISTBABS OF THE StTPEEME COtlET OF JXIDICATDEE, AND AUTHOR OF
"the PBACTICE m equity by way op revivor AND SUPPLEMENT."
LONDON:
STEVENS & HAYNES,
BELIi YAED, TEMPLE BAB.
1876.
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LONDON
PBINTBD BY WILLIAM OLOWES AND SONS,
KrAUKOni> STBEET AKD CHARING CKOSS.
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TO
THE EIGHT HONOUEABLE HUGH McCALMONT
BAEON CAIENS,
LORD HIGH CHANCELLOR OF GREAT BRITAIN,
%hi8 moth.
IS BY PERMISSION
MOST RESPECTFULLY DEDICATED.
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PREFACE.
I SUBMIT to the Profession a book whioli I commenced in the latter
end of 1869, and which is the result of several years' labour. In
doing so I am aware that the practice in the Chancery Division of
the High Court of Justice remains in many branches of its work very
unsettled, even if the 'principles can be considered as defined. But
on the other hand, the Judicature Acts and Eules have left much of
the old Procedure in Chancery unaffected, and have demonstrated
without ambiguity much of the new Procedure. To the safe ground
indicated I have almost entirely confined myself; and on that account
the present publication may not, I hope, be thought inopportune, or
found to be valueless.
I must express the obligations I am under for many of my refer-
ences to the following works : — Story's Equity Jurisprudence ; Fisher
on Mortgages ; Kerr on Injunctions ; Backley on the Companies Acts,
1862 and 1867; and in particular to the last Edition of Daniell's
Chancery Practice by Mr. Field and Mr. Dunn.
For the Index I am indebted to my friend Mr. Herbert Jackson, of
the Chancery Eegistrars' Office. So much of the value of a Law
book depends upon its Index, that I have studied to put the Index
of this Volume into good hands ; and I believe successfully.
LOFTUS LEIGH PEMBEETON.
AprU, 1876.
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CONTENTS.
CHAPTER I.
WRIT or SUMMONS — APPEABAtiCB.
Form of Summons — Indorsements on Claim, 1. Service of Writ of Summons, 2, 3.
Service out of Jurisdiction, 4. Appearance, 5. Appearance set aside — Time
for Appearance — Notice — ^Default of Appearance — ^Infants — Person of Unsound
Mind, 6. Payment into Court in Satisfaistion, 7.
CHAPTER II.
PARTIES AND JOIHDBE OF CAUSES OF ACTION.
Parties, who may be joined, 8. Trustees and Executors — Married Woman and
In&nts — Misjoinder of Parties, 9. Wlien Deft added — Deft claiming Contri-
bution of Indemnity, 10. Questions of Action relating to Persons not Parties
— Joinder of Causes of Action, 11. Action by and against Lunatics and
Persons of Unsound Mind, 12.
CHAPTER III.
PLEADINGS.
Pleading generally, 13 — ^15. Pleading Matters arising pending the Action, 16.
Statement of Claim, 17. Defence, 18. Discontinuance — Reply and subse-
quent Pleadings, 19. Amendment of Pleadii^, 20. Default of Amendment
after Order obtained, 21. Amendments at the Hearing — Amendments, how
made — Delivery of amended Pleading, 22.
CHAPTER IV.
DEMUBBEG.
Allowed — Overruled, 23. By whom — Form of — ^Delivery of — Combination of
Demurrer and Defence — Pleading and Demurring — Entering Demurrer for
Argument — ^Default of Entry, 24. Pleading pending Demurrer — Demurrer
allowed — Costs — ^DemuiTsr overruled — Costs — Entering Demurrer for Argu-
ment, 25.
CHAPTER V.
DEFAULT or PLEADING.
Non-delivery by Pit of Statement of Claim — Dismissal for want of Prosecution —
Default of Pleading, 26. Non-delivery by Deft of Defence or Demurrer —
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Non-delivery of Reply, or Demurrer, or subsequent Pleading — Issues between
Persons not Pits or Defts — Judgment by Default set aside, 27.
CHAPTER VI.
DISCOVERT AND INSPBOTION.
Interrogatories to Bfldy Corporate or Joint Stock Company — Interrogatories
struck out, 28. Answers to Interrogatories — Affidavit — Objection to answer-
ing Interrogatories — Affidavit — Omission to answer Interrogatories — Insufficient
Answer — Production of Documents, 29. Inspection of Documents — Rules as
to Production, 30. Notice to produce Documents referred to in Pleadings or
Affidavit — Inspection of Documents referred to in Notice — Application for
Order — Affidavit, 31. Discovery or Inspection reserved — Right to Produc-
tion, 32-34. Non-compliance with Order — Service of Order — ^Notice of Order
by Solicitor to his Client — Evidence of the Answers to Interrogatories, 35.
CHAPTER VII.
SPECIAL CASE.
Appointment of Guardian, 36. Setting down — Entering for Argument — Amend-
ment of Special Case — Future Rights, 37. Costs, 38.
CHAPTER VIII.
TBANSFERS AND CONSOLIDATIOlil.
From one Division to another — From one Court to another, 39. Judicature
Rules, 40.
^ CHAPTER IX.
ISStTES.
Forms of Orders for Ti-ial of Questions of Pact, 41-43. Verdicts indorsed on
Postea, 44-45. New Trials, 46. Decree after Trial of Issues — Issues, 47, 48.
Jury, 49. Forms of Oaths— Verdict, 50. Order for View by Jury, 51.
Motion for Judgment after Issues tried — Trial of Issues postponed, 52.
■ CHAPTER X.
PBOCBBDINQS XS DISTRICT REGISTRIES.
Registries, how established — Powers of District Registrars — Proceedings which
may be taken — Proceedings up to Trial, 53. Writs of Execution — Costs —
Authority of Registrars — References and Appeal to Judge, 54, Removal of
Action from District. Registry, 55. Production of Documents — Accounts, 56.
CHAPTER XI.
ADMISSIONS.
Notice of — Costs— Form of Notice, 57, 58.
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CHAPTER XII.
TRIAL — EVIDENCE — ^MOTION FOB JUDGMENT.
Place of IWal— Mode of Trial, 59. Notice of Trial— Default at the Trial, 60.
Judgment — Leave to set aside, &c. — Questions of Pact and Law — Jury — Asses-
sors— Commissioners — Eeferee, 61. Evidence generally, 62. Evidence by
Affidavit — Motion for New Trial, 63. Motion for Judgment, 64. Entry
of Judgment, 65, 66.
CHAPTER XIII.
Forms of Orders — Judgment affirmed — Reversed — Transfer of Jurisdiction, 67.
Appeals from High Court — Appeals from Inferior Courts to Divisional Courts
— Constitution of Court of Appeal — Tenure of Office of Judges — Orders not
subject to appeal, 68. Discharging Orders made in Chambers-^Absence of a
Judge — Power of a single Judge — Pinal and Interlocutory Orders — Judges not
to sit on Appeal from their own Judgments, 69. Appeals, how brought —
Notice of Motion — How set down — Amendment — Further Evidence, 70.
Limit of Time for appealing — Deposit — From Winding-up Orders — From
ex parte Applications refused by Court below — Evidence in Court below —
Questions of Fact, 71. Cross Appeals — Notice— Omission to give Notice —
Appeal not to stay Execution, 72.
CHAPTER XIV.
MOTIONS AND APPLICATIONS AT CHAMBEBS.
Motions, 73. Applications at Chambers, 74.
CHAPTER XV.
CHANGES OP IKTEBBST.
Effect of Marriage, Death, Bankruptcy and Assignment — Recent Practice in
Chancery, 75-76. The Right to an Order to carry on Proceedings, 78-79.
Determination of Interest, 80. Forms of Orders, 81-86, Security for Costs —
Continuing Proceedings for Costs — Statutes of Limitation, 87. Service of
Order — Appearance — Discharge of Order — Compulsory Orders to prosecute
Action, 88-92— Orders dispensing with or appointing Representatives, 92-93.
CHAPTER XVI.
ENFOKCING OBDBRS AND JUDGMENTS.
Mode of enforcing — For the Payment of Money into Court — For the Recovery or
Delivery of Land — For the Recovery of Property other than Land or Money —
For Acts other than Payment of Money, &c. — Relief subject to Condition, 94.
Execution against Partners — Writ of Execution, Definition of — Writ, for what
Time in force, and within what Time may issue, 95. Enforcing Orders by or
against Persons not Parties — Proceeding by audita querela — Existing Modes of
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enforcing Orders and Judgments— Order in which Writs may issue— Enforcing
by Writs of Pi. Fa. and Elegit, and Venditioni Exponas, 96. Enforcing by Se-
questration, 97-98. Order for Serjeant-at-Arms, 98— Order to turn over
Prisoner — Order for Habeas, 99. Sequestration against Corporations, 100 —
Enforcing by Attachment, 101. The Debtors Act, 1869— Trustees and Soli-
citors, lOa. Contempts of Court— Committals under Debtors Act, 1869 — Pay-
ments.by Instalments, 105-106. Discharge of Prisoner committed under Debtors
Ao^-Writ of Possession— Orders pro hiteresse suo, 107-108. Enforcing by
Mandamus, 109. Writ of Delivery, 109. Attachment of Debts, 110, 111.
CHAPTER XVII.
INFANTS.
Guardians ad Litem — Actions by and against, 112, 113. Guardian of Person —
Maintenance, 113. Guardian of Person and Estate, 114. Custody and Educa-
tion, 104, 105. Kemoval of Guardian — Testamentary Guardian — ^Leave to
take Infant out of Jurisdiction, 116, 117 — Propriety of Suit, 117, 118. Alle-
gations of Pact against Infants in Pleadings — ^Decrees against Infants, 118.
Infant Wards — Orders in reference to Infant Wards, 119-122. Property Law
Amendment Act, and Orders under it, 123-125. Infants Custody Act, and
Orders under it — Infants Marriage Act, and Orders under it, 128-131. Infants
Settlement Act, and Orders under it — The Infants Belief Act, 131-133.
CHAPTER XVm.
MABBIED WOMEN.
Next Friends— Orders as to Next Friends, 134. Actions by and against Married
Woipen — Appeal of Married Women — Compromise of Suit — Costs against—
— Foreclosure against — Establishing Will against — Bight to sue in Forma
Pauperis — Eight by Survivorship— Payment to Husband in Eight of Wife —
Pjiyments to Women who afterwards marry, 137, 138. Equity to a Settlement
— Order making a Settlement, 139, 140. Eight to a Settlement — ^Amount
brought into Settlement — Form of Settlement, 141-143. Waiver of Settlement
— Examination in Court, 144. Charge of Separate Estate, 145, 146. Married
Women's Property Act — Married Women's Property Act Amendment Act, 146-
148. Protection Orders, 148.
CHAPTER XIX.
ACCOUNT.
Orders directing Common Accounts, 149, 150 — Jurisdiction of the Court — Statute
of Limitations — Mode of taking Account, 150, 151. Evidence at the Hearing —
Costs — Settled Accounts — Allowances — Set-off — Interest — Appropriation, 155.
Agency — Solicitor and Client — Principal and Stewai-d — Company and Agent —
Principal and Agent, 156, 157. , Accounts between Tenants for Life and Be-
maindermen, 158, 159. Apportionment — Contribution — Sureties, 161, 163.
Accounts of Rents and Profits — Tithes— Modus, 164, 165.
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CHAPTBE XX.
PARTNEKSHIP.
Orders directing Comtnon and Special Partnership Accounts, 166-173. Jurisdic-
tion of the Court — Mortgages to secure Partnership Debts — Interest on
Capital after Dissolution, 174-177.
CHAPTBE XXI.
ADMINISTBATION.
Orders establishing Will — Administration Orders of Heal and Personal Eslate in
Creditor's Action, 178-180. In Action by Next-of-Kin — In Actions by Lega-
tees, Trustees, Executors, or Beneficiaries, 180-182. Accounts against Executors,
183. Special Inquiries — Inquiries as to Heir-at-Law — Sales and Contracts,
Exchanges, Mortgages, Dovfer, &c., 184-188. Election, 188. Domicile — Com-
mon and Special Orders directing Inquiries, 189, 190. Common Directions —
Deposit in Court, &c. — Transfer and Payment into Court, 191, 192.
Orders on Further Consideration — Orders providing for Payment of Costs
Debts, and Legacies, 193-196. Hotchpot Provisions, 196, 197 — Insufficient
Estate — Orders providing for Abatement of Legacies and Contribution of Real
Estate, 199, 204. Orders marshalling Assets — Orders directing Sale or Mort-
gage of Eeal Estate for Payment of Debts — Orders apportioning Costs — Orders
providing for Costs where Shares incumbered, 205-211.
Establishing Will — Actions for Administration — General Administration — Parties
-t-General Administration at Chambers — Marshalling — -Speciality and Simple
Contract Debts — Legacy and Succession Duty, 212-219. Interest on Debts
and Legacies — ^Apportionment of Income — Domicile — Costs out of Estate-
Costs of Incumbered Shares — County Court Jurisdiction, 220-225.
Charities — Orders directing Inquiries and Declarations as to Charitable Bequests,
226-235. The Mortmain Act, 9 Geo. 2, c. 36— Charities excepted from Mort-
main Act — Construction of Gifts to Charities, 236-239. Increase of Income —
Investment of Charity Moneys — Administration cy-pres — Charity Leases —
Orders directing Schemes to be settled — Charity Schemes — Costs, 240-248.
Accounts of Debts and Liabilities, 248-250,
CHAPTER XXII.
INJUNCTIONS.
Common Forms of Order ex parte and on Notice — Undertaking as to Damages —
Injunction on Payment into Court — Injimction Orders, where granted— Man-
datory Injunctions, 251-253.
Waste— Orders restraining Waste — Jurisdiction of the Court, 254-260.
Trespass — Orders restraining Trespass — Jurisdiction of the Court, 260-268.
Nuisance — General Rights to Injunction— Light and Air — Orders restraining In-
fringement of Light and Air— Right to Light and Air, 268, 274. Water —
Orders restraining Improper Use or Diversion of Water — Right to Use of Wa.ter
and Running Streams, &c., 274-278. Noise and Noisy Trades— Orders
restraining them — Nuisance to Eight of Way — Nuisance in respect of Eight to
support, 278, 280.
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Breach of Agreement or Covenant — Orders restraining Breaches — Bight to In-
junction, 281-286.
Copyright — Literary Copyright — Orders granting Injunction — Duration of
Literary Copyright — Subjects of Literary Copyright— Registration— Assign-
ment— International Copyright in Books, 286-290. Dramatic and Musical
Copyright — Orders granting Injunction — Eight to Order — International Copy-
right in Dramatic Pieces, 290-293. Prints, Engravings, and Etchings— Orders
restraining Publication — Right to Order — Copyright in Sculpture, Casts, and
Models — Copyright in Paintings, Drawings, and Photographs, 293-296. Copy-
right in Designs, 296-298.
Patents — Orders restraining Infringement — Patents, how obtained — Specifications
— Kight to Injunction, 298-305.
Perpetual Injunction in Patent Cases — Inspection of Patent — Destruction of
: Articles made in violation — Account of Profits — Costs in Patent Suits — Triil
' . of Issues, 306, 307.
Trade Marks— Orders granting Injunction — Right to Order — Amount of Profits,
308-313.
Confidential Communicatioijs — Orders granting Injimction — Right to Orders,
313-314.
Railway and other Companies — Order granting Injunction against— Right to
Orders, 314—325.
Merchant Shipping Acts — Orders — Right to Order, 326-328.
Stop Orders — Common Forms — Writs of Distringas — Charging Orders — Writs of
ne exeat, 329-334.
CHAPTER XXIII.
EEOBIVBBS.
Common Orders — Orders appointing Receiver— Of Businesses — 'Of Manors — Of
Heirlooms — Of Canals — Of Railways — Of Markets — Of Docks — Of a Rectory —
Of a Pension, 335-840. New Security — Receiver, when appointed — Security^
Salary — Accounts, 341, 342. The Persons appointed Receivers — Efi'ect of
Appointment — The Property of which Receiver may be appointed — Mortgaged
Property — Directions by the Court to Receiver — Discharge of Receiver,
343-349.
CHAPTER XXIV.
MORTGAGES.
Common Foreclosure Decrees — Decrees when Mortgagee is in Possession, 350, 351.
Decrees directing successive Foreclosures, 352-356. Decrees where Changes in
Interest of Mortgagors or Mortgt^ees, 357-359. Mortgages of Personalty,
361, 362. Orders directmg Special Accounts and Inquiries, 363, 364. Orders
directing Sale instead of Foreclosure, 364-366. Bight to Foreclosure or Sale, 367.
Repairs — Allowances — Interest, 369-373. . Costs, 376-376. Accounts with
Rests — Receiver, 377, 378. Orders under Equitable Mortgages, 380-386.
Creation of Equitable Mortgages and Right to Relief, 386, 387. Orders at Suit
of Judgment Creditors, 388-390. Rights of Judgment Creditors, 390. Tacking,
391, 392. Consolidation of Mortgages, 393-396. Mai-shalling Securities, 397.
Foreclosures in Particular Cases, 397-399. Derivative Mortgages, 399. Orders
of Foreclosure against Infants and Married Women, 400-402. Mortgages
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between Solicitor and Client, 403. Orders of Final Foreclosure, 403. Liens,
405-406. The Merchant Shipping Acts and Orders — Bottomry, 408-412.
Orders in Redemption Snits, 412-419. The Eight to redeem, 420. Orders
under the Benefit Building Societies Acts, 422-424. Welsh Mortgages, 425.
CHAPTER XXV.
SPECIFIC PEEFOKMANCB.
Orders in Suits by Vendors, 427-434. Orders in Suits by Purchasers, 435-438.
Frame of Deoree^Title— Right to Decree, 438-446. Sale of Land— Root of
Title, 446. Mandatory Orders — Rents — Wilful Default — Occupation Rent —
Rests, 446, 447. Compensation — Abatement — Consideration Money — Payment
of Purchase- money into Court, 448. ConWact — Time — Damages — Interest —
Lien on Vendor's Estate, 449, 450. Default in Payment by Purchaser —
Rescinding Contract — County Court Jurisdiction, 451, 452.
CHAPTER XXVL
RECTIFICATION OF DEEDS.
Orders rectifying Deeds, 453-456. Jurisdiction of the Court, 456-458.
CHAPTER XXVn.
SALES BY THE COtTET.
Common Orders — Property, when sold — Property, how sold — Particulars of Sale —
Conduct of Sale, 459, 460. Conveyancing Counsel — Leave to bid — Deposit,
461. Investigation of Title — Orders directing Payment in(;o Court, 463, 464.
Possession — Interest — Conveyance — Title Deeds — Dealings with Purchase-
Money, 464, 466. Re-sale — Contract rescinded — Discharge of Purchaser —
Substituted Purchaser, 467-470. Sale of Goods and Merchandise of perishable
Nature, 471.
CHAPTER XXVin.
PARTITION.
Order directing Partition, 472-478. Right to Partition— Pecuniary Compensation
— Commission — Costs, 480, 481. Orders directing Sales under the Partition
Act, 1868 .. 481-484. Right to an Order for Sale— Form of Decree, 485, 486.
Parties — Inquiries — Service of Notice of Decree — Liberty to bid — Application
of Trustee Act, 1850 — County Court Jurisdiction, 487, 488.
Boundaries — Order directing Commission — Suits to ascertain Boundaries, 488,
489.
Dower — Order directing Inquiries and Assignment of Dower Right to Dower,
489-491.
CHAPTER XXIX.
SOLICITORS.
Orders striking Solicitors off the Rolls, 492, 493. Change of Solicitor — Orders
directing Delivery of Papers, 494-496. Lien of Solicitor on Deeds — Lien of
Solicitor on Fund in Court, 496, 497. Interest on Taxed Costs — Orders making
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Costs a Charge, 497-503. Taxation of Solicitor's Bill under 6 & 7 Vict. c. 73—
Orders directing Taxation under Sect. 37 of 5 & 6 Vict, c, 73.. 504-512.
Orders of Course and Special Applications under Sect. 37 — Orders for delivery
of Bill, Deeds, &c., 513, 514. Orders directing Taxation under Sect. 38 of the
Act, 515, 516. Orders directing Taxation (after payment) under Sectl 41 of
the Act, 518-520. Agreements for Remuneration, 522. Interest on Moneys
disbursed by Solicitor — Interest on Moneys belonging to Client, 522, 523. The
Legal Practitioners Act, 1875 . . 524.
STATUTOEY JURISDICTION.
CHAPTER XXX.
PBODTTCTION OF CESTUI QUE VIE,
Order for Production at Parish Church and before Commissioners — Bight to
Order— Service of Order — Non-production~Second Order — Commissioners —
Cestui que vie abroad — Cestui que vie proved to be alive — Costs, 526-528.
CHAPTER XXXI.
THE CHAftlTABLE TKUSTS, &C., ACTS.
Orders under Sir Samuel Eomilly's Act — Eight to Order under that Act — Service
of Petition — Scheme — Ordering apportioning Costs, 520-531. The Charitable
Trusts Acts, 1853 to 1869— The Elementary Education Act, 1870— Enforcing
Orders of Charity Commissioners — Charities exempted from Jurisdiction —
Costs of Attorney-General, 532-536 — The Grammar School and Endowed
Schools Acts — The Church Building Acts Amendment Acts, 536-540. The
Burial Acts, 1852 to 1871 — The Municipal Corporations Acts, 540, 541. In-
rolment of Deeds — Charitable Uses Acts, 543.
CHAPTER XXXII.
AEBITEATION.
Orders making Agreement or Submission an Order of Court — Orders referring
Suit to Arbitrators — Right to Arbitration, 545-547. Stay of Proceedings —
Evidence of Arbitrators — Failure of Parties or Arbitrators — Award — Time
enlarged — Award remitted — Award set aside — Delivery of Possession — Produc-
tion of Documents, 548-554 — ^Arbitration under Friendly Societies, &c., Acts —
Arbitration under Lands Clauses Consolidation Act — Costs, 454-556.
CHAPTER XXXIII.
THE COPYHOLB ACTS.
Orders under the Copyhold Acts — Payment into Court — Application of Money
Costs, 558-560.
CHAPTER XXXIV.
THE DEFENCE ACTS.
Orders under the Defence Acts— Application of Compensation Money— Service
of Petition— Costs— Sale by Secretary of State of War, 561-563.
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CHAPTER XXXV.
THE PABLIAMENTART DEPOSIT ACT.
Orders under Parliamentary Deposit Act — Payment into Court — Investment —
Payment out, 564-567.
CHAPTER XXXVI.
THE LANDS CLAUSES CONSOLIDATION ACT, 1845.
Orders under Sects. 69 and 70 — Orders under Sects. 73 and 74 — Orders pro-
viding for Costs of Purchase and Reinvestment, 568-578. Investment of
Purcliase-money — Land Tax, Debts, and Incumbrances, 578, 579. Purchase
of other Lands — Removing or replacing Buildings — Permanent Improvements,
579, 580. Payment to Persons entitled — Disentailing Deed — Interim Invest-
ment— Compensation — Costs — Investment by Promoters of Undertaking, 580-
586.
CHAPTER XXXVII.
THE TEUSTEE EBLIEP ACTS.
Orders — Payment into Court — Affidavit — Discharge of Trustee — Notice by
Trustee — Petition — Summons — Service of Petition — Effect of Order — Juris-
diction—Costs, 587-592.
CHAPTER XXXVIir.
THE TRUSTEE ACTS, 1850 AND 1852.
Lunatics — Persons of unsound Mind, 593. Land — Bare Trustees — Married
Women, 594. Orders under Sects. 7 and 8 of Trustee Act, 1850.. 594, 595.
Orders under Sects. 9, 10, 11, and 12 — Orders under Sects. 13, 14, 15, and
16.. 596, 597. Orders under Sect. 2 of Extension Act, 598. Orders under
Sects. 19, 20, and 21 of Trustee Act, 1850 .. 598, 599. Orders under Sects. 22,
23, and Sects. 4 and 5 of Extension Act, 601-604. Orders under Sect. 28 —
Orders under Sect. 29 and Sect. 1 of Extension Act, 604-606. Orders under
Sect. 30— Orders under Sects. 32, 34, 35, and Sect. 9 of Extension Act, 608-
613. Disclaiming Trustees — Trustees, who appointed, 613. Costs — Parties to
Petition— Evidence, 614-616.
CHAPTER XXXIX.
THE SETTLED ESTATES ACTS.
Guardians of Infants — Consents — Examination pf Married Women — Advertise-
ments of Petition — Setting down Petition — Evidence, 617-620. Orders
directing Sale, 620-624. Application of Sale Moneys and Rents— Interim In-
vestment— Leases — Building Leases, 625-628. Streets, Roads, and Gardens,
628-630. Mining Leases — Indorsement on Settlement — Costs, 630-632.
CHAPTER XL.
LAW OP PROPERTY, &C., AMENDMENT ACT.
Orders authorizing Investments — Questions for the Opinion of the Court — Service
of Petition — Evidence — Costs — Investments by Trustees — Cash under the
Control of the Court, 633-636.
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CHAPTER XLI.
PKI80NBRS EBLIBP ACT.
Orders assigning Counsel and Solicitor'to Prisoner under Sects. 2 and 4 — Order
under Sect. 5 — Examination of Prisoners, &c., 637-639.
CHAPTER XLII.
THE COMPANIES ACTS, 1862 AND 3867.
Compulsory Winding-up Orders — Assets how administered — Winding-up Orders,
when made, 640-644. Company "unable to pay its Debts," Section 80 —
Meaning of "the Court," 644-646. Who may petition — ConcuiTent Peti-
tions— Title of Petition — Advertisement of Petition — Service of Petition —
Verification of Petition — Advertisement of Order to wind up, 646-652. Costs,
Security for, and Payment of, 652, 653. Provisional Liquidator, Appointment
of — Official Liquidator, Appointment of — Security — Resignation, &c., and
Compensation of Liquidators — Powers of Liquidators, 654-656. Rectification
of Register, 659-662. Liability of Members, 662-664. Unlimited Liability
of Directors, 665. Payments in Cash — Contributories, 665, 666. Restraining
Legal Proceedings, 667-670. Stay of Winding-up Proceedings, 671. Meetings
directed by the Court — Winding-up in County Court, 672, 673. Voluntary
Winding-up, 673, 674. Winding-up subject to Supervision, 675, 676. Ap-
peals, 677, 678. Proof of Debts, 679. Suspected Persons — Absconding Con-
tributory— Enforcendent of Orders, 679, 681. Unregistered Companies, 681-
683.
Life Assurance Conipanies : — Subsidiary Company — Valuation of Policies and
Annuities — Novation by Policy-holders, 683-686.
Reduction of Capital : — Orders reducing — Special Resolution — Petition — Creditors
opposing Reduction — List of Creditors — ^Notice to Creditors — Certificate —
Hearing of Petition — Registration of Order and Minute, 686-693.
Joint Stock Companies Arrangement Act : — Meetings — Compromise, 693.
CHAPTER XLIIL
COKFIEMATION OF SALES ACT.
Orders directing Sale — Powers of Sale and Exchange — Parties to Petition, 694,
695.
CHAPTER XLIV.
JUDGMENT DEBTOBS ACT.
Orders — Delivery of Land in Execution — Order for Sale — Notice of Sale — Parties
claiming under Debtor, 696-698.
CHAPTER XLV.
THE COPNTT CODRT ACTS.
Jurisdiction — Transfers to and from County Court — Appeal from County Court
Appeal by way of Motion — Appeal by way of Special Case, 699-702.
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OHAPTBE XLVI.
THE iBAILWAT COMPANIES ACT, 1867.
Order appointing Eeceiver— Protection of Boiling Stock and Plant— Scheme for
Arrangement — Petition — Appearances — Order on Petition — Inrolment of
Scheme— Notice of Order— Inrolment of Order— Rehearing, 703-708.
CHAPTER XLVir.
THE LIQUIDATION ACT, 1868.
Division of Assets in Specie — Scheme— AfSdavit— Notice of filing Scheme— Con-
firmation of Scheme — Petition — Order confirming Scheme — Inrolment of
Order — Petition for Reheariog — Chamber Order— Effect of Scheme— Meetings
of Creditors^-Poreclosure by Notice, 709-712.
CHAPTER XLVm.
METROPOLITAN BOAED OF WORKS ACT.
Default in payment of Dividend — Receiver, 713.
CHAPTER XLIX.
THE LIFE ASSURANCE COMPANIES ACTS.
Payment of Deposit into Court — Investment of Deposit — Amalgamation or Trans-
fer of Companies — Reduction of Contracts, 714, 715.
CHAPTER L.
THE NATIONAL DEBT ACT, 1870.
Orders directing Transfer to Claimant — Unclaimed Dividends — Retransfer to Per-
sons entitled — Service of Petition — Costs — Rescinding Order — Second Claimant,
716-718.
CHAPTER LI.
THE LAND TRANSFER ACT, 1875.
Part I.
Entry of Land on Register of Title : — Freehold Land — Leasehold Land, 719-722.
Examination of Title by Registrar — Liabilities, Rights, &c. — Discharge of In-
cumbrance— Determination of Lease — Adverse Possession, 719-724.
Part II.
Registered Dealings with Registered Land : — Eight of Entry of Proprietor of
Charge — Right of Foreclosure — Of Sale — Priorities of Charges — Cancelling
Charges — Transfer of Freehold and Leasehold Land — Transfer of Charges —
Transmission of Land and Charges, 724-728.
Part III.
Unregistered Dealings with Registered Land — Notice of Leases — Notice of Estates
in Dower — Cautions against Registered Dealings — Inhibition by the Court,
729-731.
b 2
Digitized by Microsoft®
XX CONTENTS.
Paet IV.
Cautions against Entry of Land on Register — Crown Lands — Registration of
Lands of different Tenures — Power of Trustees to sell — ^Registration of Part
Owners — Production of Deeds — Application to the Court — Costs — Doubtful
Question arising on Title, 732-735.
The Trustee Act, 1850 — Married Women — Infants and Lunatics — Specific Per-
formance— Costs — Rectification of Register — Appeals — Inspection of Register
—Description and Powers of " the Court," 737-741.
CHAPTER LIL
TBADE MABKS EEGI8TEATI0N ACT, 1875.
Registration of Trade Marks — Disputed Claim — Reference to the Court — Charac-
teristics of Registered Trade Mark — Recljification of Register — Applications to
the Court, 742, 743. Restrictions on Registry — Removal of Trade Mark — The
Cutlers' Company and SheiHeld Corporate Marks — Definitions of Trade Marks,
744-746.
CHAPTER LIII.
COPTEIGHT OF DESIGNS ACT, 1875.
Transfer of Powers to Commissioners of Patents, 747-748.
Digitized by Microsoft®
TABLE OF CASES.
A.
Abbott, Re . . . 520,
V, Sworder
Aberdeen v. Chitty
Abergavenny v. Abergavenny
V. Thomas . . 488,
Aberystwitb Railway Co., Re
Aoaster v. Anderson .
Accidental and Marine Insurance
Co., Re ,
V. Mercati
Ackroyd v. Ackroyd .
Adair's Settled Estates, Re
Adam, Re
Adams v. Fisber
Adamson v. Hall
Adley v. Whitstable Co.
African Steamship Ca v. Swanzy
Agar V. Fairfax . . 479, 480,
Agra and Masterman's Bank, Re .
(Cannan's CJaim)
Aguilar v. Aguilar
Ainsworth v. Alman .
V. Bentley
V. Walmsley .
Airey v. Hall
Aitchison v. Dixon
Albert Average Association, Re
Albert Life Assurance Co., Re
Albion Bank, Re
Alcock V. Alcock
Alden v. Foster
Alderson v. White
Aldis V. Knight
Aldrich V. Cooper
FAOE
PAQB Aldworth v. Robinson . . 398
521 Alexander v. Simms . . , 411
439 Allan v. Backhouse . . 159, 162
342 Allen, iile . . . 587,591
75 V. Macpherson . . 212
489 —. V. Martin . . .267
565 V. Papworth . . . 146
216 V. Williams ... 97
AUfrey «;. AUfrey . . 150,154
647, 680 AUhusen v. Whittell . . .221
652 Alsop V. Bell . . . . 224
199 Alvanley v. Kinnaird. . . 444
624 Ames v. Birkenhead Docks (Trus-
620 tees of). . . . 340,344
33 Amesbury v. Brown . . 162, 373
89 Anderson v. Kemshead . . 378
150, 325 V. Stather ... 5
329 Andrews, Re . . . .524
481 V. Lockwood ... 87
658 V. Partington . . 115
656 V. Salt . . . .114
143 Angell v. Smith . . . 378
37 Angelo, Re . . . .608
281 Anglesea Colliery Co., Re . . 647
311 Anglesey (Marquis of), ife . . 160
33 Anglo-Austrian Bank, Re . . 555
222 Anglo-Danubian Co. v. Eogerson . 252
683 Anglo-Danish Steam Co., Re . 651
Anglo-Egyptian Navigation Co., Re 653
Anglo-Greek Steam Co., Re . 644
Anglo-Moravian Railway Co., Re 653
Anon. ..... 104
(3 Atk. 572) . . .214
— (6 Mad. 276) . . .334
(,2 K. & J. 441) . . 175
658, 693
. 653
. 135
. 404
422, 426
. 155
217, 218, 397
Digitized by Microsoft®
TABLE OP CASES.
Aiming v. Hartley
Anson (Lord) v. Hodges
V. Towgood
Anspaek v. Noel
Appleby v. Dodd
Archer v. Hai-rison
— V. Preston
V. Slater
Armitage v. Walker
Armstrong v. Armstrong
Arnold v. Bainbrigge
V. Bradbury
V. Gamer
• V. Young
FAGS
. 552
. 451
. 465
. 439
. 159
424, 425
. 443
. 212
. 555
. 225
. 420
. 42
. 371
. 184
. 594
. 138
. 717
242, 530
380, 443
372, 374
. 87
. 280
. 176
258, 373
. 85
Arrowsmith's Trusts, lie
Asbby V. Asbby
Ashmead, Se .
Asbton Charity, Be
V. Corrigan
Asbwell V, Staunton
Askew V. Townsend
Aspden v. Sedden
Astle V. Wright
Aston V. Aston .
Atkinson v. Parker
Att.-GeD. V. Alford . . .155
V. Attwood . . . 152
V. Backhouse . . . 242
V. Barkhara ... 82
V. Beverley (Corporation of)
232, 240, 241
V. Birmingham (Borough of)
268, 274
V. Bodmin (Mayor of) . 232
V. Bradford Canal Co. . 276
V. Bristol (Mayor of) 240, 248
V. BuUer . . . 248
V. Burnley (Corporation of) 241
■ V. Chester (Corporation of)
246, 248
V. Church . . . 130
V. Clarke . . . 238
V. Clements . . . 131
V. Colney Hatch Lunatic
Asylum . . . 273, 275
V. Cornthwaite . 180, 214
V. Coopers' Company 242, 246
■ -■«. Craven (Earl of) . 243
■■ V. Cross . . . 242
■ V. Cuming . . .325
Att.-Gen. v. Davey
V. Davies
V. Day
V. Dixie
V. Dove
V. Downing
V. Doyley
V. Drapers' Co.
FAGS
234, 243
. 238
, 443
. 243
. 247
. 242
. 241
231, 282, 238,
240
— V. Etough ... 37
— V. Exeter (Corporation of) 244,
542
— V. Fishmongers' Co. 240, 247
— • V. Foster ... 81
— V. Gascoigne . . . 245
— V. Gee .... 343
— y. Gibson . . .129
— V. Gladstone . . 239
— V. Great Northern By. Co. 324
— V. Green . . 242, 243
— V. Griffiths . . .242
— V. Haberdashers' Co. . 239
— V. HaU . . 238, 243
— V. Hanmer . . . 246
— V. Hardy . . .399
— V. Hotham (Lord) 233, 243, 248
— V. Hungerford . . 242
— V. Hurst . . . 248
— V. Ilchester (Corporation of) 244
— V. Kerr . 243. 246, 247
— V. Kingston (Mayor of) . 268
— V. Lepine . . . 245
— V. London and North
Western Bail. Co. 321,324
— V. Lowe . . . 540
— V. Lucas . . .131
— V. Ludlow ■ . . . 542
— V. Mansfield (Earl of) . 242
— V. Marlborough (Duke of) 258
— V. Mathias . . . 247
— V. Mereers' Co. . . 247
— V. Metropolitan Board of
Works . 254, 268, 277
^— V. MuUay . . . 131
— V. Netheroote . 248, 333
— V. Newark (Corp. of) 248, 469
— V. Norwich (Corporation of) 325
— V. Oglander . . . 242
— V. Owen . . 242, 248
— V. Peacock . . . 242
Digitized by Microsoft®
TABLE OP CASES.
xxm
Att.-Gen. v. Penruddock
V. Pilgrim
V. Powis (Earl of)
V. Richmoijd .
323,
489
242
325
268
■ V. Stamford (Mayor of)
- V. Stamford (Earl of)
■ V. Stephens .
• V. Sturge
■ V. Syderim
■ V. Terry
-r V. Rooliester (Corporation of)
241, 242, 248
— V. Severne . . . 131
-^ V. Sheffield Gas Co. . 233
— V. Shrewsbury (Corporation
of ) . . . . 236
— V. Sittingbourne and Sheer-
ness Eailway Co. . 451
— V. Sitwell . . .443
— V. Skinners' Co. . 240, 241
^ V. Smythies . . 240, 325
— tJ. Southampton (Mayor of) 322
— V. South Molton (Corpora-
tion oQ . . .240
— V. St. Cross Hospital 321, 325
-T- V. St. John's Hospital 235, 243
243
531
489
245
238
278
V. Thames Conservators 268, 278
V. Thetford (Corporation of) 325
V. Vigor . . .348
r- V. Warren . . . 242
V. Wax Chandlers' Co. . 241
V. Wigan (Mayor of) . 325
V. William and Mary (Col-
lege of) . . .219
V. Wilson . . .241
V. Winchilsea (Earl of) . 248
V. Windsor (Dean and
Canons of) . . 248
u. Wood . ' . .242
w. Worcester (Bishop of) 245,530
V. Yarmouth (Corp. of) . 321
Atwood V. Maude . i 173, 176
Attwood V. Small . . .468
Aubrey's Estate, Be . . . 585
Audley Hall Cotton Spinning Co.,
lie
Auater v. Haines
Austin V. Phelips
Australia (Bank of), Be
Averall v. Wade
653
. 80
. 181
. 652
218, 397
Ayles V. Cox
1 Aylet V. Dodd .
Aynsl^y V. Glover
■ V. Eqad
B.
Back V. Staoey
Bacon v. Jones .
Badcock, Be
Bagshawe v. Eastern
Union
way
— V. Winter
Bagot V. Bagot .
Baile v. Baile .
Bailey, Be
: — V. Birchall
V. Bryson
V. Collett
V. Hohson
Baker, Be
V. Gray
V. Hall .
V. Sutton
Baker's Case
Balfe V. Lord .
Ball V. Coutts .
V. Kay .
Balston v. Smith
Bamford v. Bamford
Bankart v. Tennant
Banks v. Cartwright
Bankier v. Poole
Banner v. Johnston
Barclay, Ex parte
Barfield v. Loughborough
Baring v. Dix .
Barker v, Mariot
V. Peele
^ V. Walters
Barlee v. Barlee.
Barlow v. Gains
■ r- V. Osborne
Baruaby v. Tassel
Barnard, ije
V. Ford
Barned's Banking Co.,
Barnes, Be
V. Eacster
V. Wood
PAGE
604, 615
. 242
, 272
. 420
272
306
613
Eail-
. 324
. 143
. 259
500, 503
. 512
. 501
. 384
. 465
. 480
. 516
. 396
. 142
230, 238
. 680
. 425
. 145
. 279
. 303
. 491
. 444
. 152
4
. 677
. 379
174, 176, 177
. 175
. 338
4
. 153
90, 135
342, 375
. 460
. 38
. 512
. 141
675, 676
. 138
206, 218, 374, 397
436, 447
Be
Digitized by Microsoft®
TABLE OF CASES.
Bamet v. Moxon . . . 488
Bamett v. Weston . . .393
Bamsley v. Powell . . . 212
Barnwell v, Iremonger . . 222
Barrett v. Ring . . . 440
Barrow, Be . . . 516, 521
V. Barrow . . 143, 458
Barry v. Barry .... 257
V. Cane . . . 136
Bartlett, 5e . . . 127,128
V. Kees . . . 357, 367
V. Salmon . . . 468
Barton v. Cook . . . .224
Basil V. Acheson . . . 873
Basket v. Cunningham . . 290
V. Cambridge (University of) 290
Bastow, Be . . 667, 670, 677
Batchelor v. Middleton
Batenian, Re
V. Boss (Countess of)
Bates, Mc parte
V. Bates.
V. Dandy
V. Hillooat
Bathurst v. Murray .
Batley v. Kynock
Battersby, Re .
Baxter, Be
V. Bower
Bealey v. Shaw
Bearblook v. Tyler . '
Beardmore v. Gregory
Beaufort (Duke of) v. Berty
V. Morris
V. Philipps
Beaujolais Wine Co., Be
Beaumont v. Boultbee.
V. Bramley .
V. Oliveira 219, 231, 239, 241
Beaumont's Trusts, Be
Beoket v. Micklethwaite
Beckett v. Buckley .
Beddgelerfc Co., Be
Bedford v. Bedford
Bedford Charities, Be .
Bedford and Cambridge Railway
Co. V. Stanley
Bedford (Duke o!)v. British Mu-
seum .
Beevor v. Luck
363, 370
. 579
. 442
. 304
79,81
. 402
. 389
. 123
306, 307
. 616
598, 604
. 272
277, 278
. 48
r9, 85, 216
114, 115
. 48
. 432
. 675
. 154
. 468
. 695
. 398
391, 418
. 704
. 79
. 530
445
. 445
395, 396
Beioley v. Carter
Bell V. Bank of London
■ V. Blyth
V. Cade .
V. Walker
V. Wilson
Bell's Case
Bellamy v. Brickenden
V. Cockle
Bellwood, Be .
Belsham v. Percival
Belton, Be
Bending v. Bending
Bennet v. Whitehead
Bennett, Be
V. Baxter
V. Foster
V. Hamill
V. Rees
Bennitt v. WhitohoTise
Benson v. Duncan
Berkeley, Be
Berkhampstead School
Bernard v. Morgan
Bemey v. Harvey
V. Sewell
Berrie v. Howitt
Berry v. Armistcad
V. Johnson
Berwick (Mayor of) v
Besch V. Frolich
Betts i;.,De Vitre
V. Gillois
V. Neil son
Bevan & Whiting, Be
Bewick v. Whitfield
Beynon v. Cook .
Bibby v. Naylor
Bickett V. Morris
Bickford v. Skewes
Bicknell, Be
Biggs V. Head .
Bignold, Be
Bignold's Settlement,
Billsou V. Owen
V. Scott
Binfield v. Lambert
Bingley School, Be
Binks V. Lord Rokeby
Bird V. Gandy .
440,
Case
Murray
Be
119
FAOB
462, 488
. 410
. 410
. 37
. 290
164, 260
. 679
. 373
365, 368
. 612
33,77
. 513
. 491
. 164
. 521
. 497
. 224
. 462
439, 440
. 263
. 412
. 613
. 245
. 399
. 165
. 378
. 502
. 468
. 469
. 155
. 175
299, 306
. 305
. 304
497, 514
. 259
. 419
79,80
. 277
. 305
. 620
. 314
. 522
. 613
. 181
, 401, 402
. 213
. 532
. 465
. 405
Digitized by Microsoft®
TABLE OP OASES.
FASB
Bird V. Husler .... 20
Black V. Galsworthy ... 34
Blackemore v. Glamorgan Oanal
Navigation .... 267
Blaokett v. Bates . . . 444
Blacklock v. Barnes . • . 371
Blaokmore v. Smith . . 76, 92
Blagden, Ex parte . . . 155
V. Bradbear . . . 443
Blagrave v. Blagrave . . . 258
Blair v. Bromley . . '. 451
Blakeley v. Blakeley . . .216
Blakesley, J?e . . . .524
Blanchard, Be . . . .612
Bland v. Davidson ... 88
Blenkinsop v. Blenkinsop . . 5
Blinston v. Warburton . . 38
Bliss V. Putman. . . .80
Blower w. Morrets ... 87
Bloxam v. Metropolitan Railway
Co. .
Bloye's Trusts .
Blundell, Be .
Blunt, Be
Blyth, Be
Boddy V. Kent .
Boden, Be
Bodicoate v. Steers
Boehm V. Wood .
Bogue V. Houlston
Boileau v. Eutlin
Bolden v. Nicholay
Bolingbroke's Case
Bolme V. Snout
Bolton V. Bolton
• V. Corporation of Liverpool
Bonaparte (The), Ux parte
Bonfil V. Purchase
Bonser v. Bradshaw
Boon V. CoUingwood
Booth V. Carter
V. Creswicke
V. Leycester
■■— V. Rich
Bootle V. Blundell
Bostock V. North Staffordshire Bail-
way Co. . . 317,324,325
Bosvil V. Brander . . 141, 142
Bbucicault v. Davenport . . 87
V. Delafield . 77, 86
319, 325
. 591
. 534
. 330
. 582
75,76
. 599
475, 479
342, 451, 465
287, 295
. 58
. 146
. 440
. 166
. 479
33
412
82
498
334
239
403
372
118
213
Bourke, Be ... . 601
Bovill V. Cowan ... 32
V. Crate . . 299, 305
V. Goodier . . . 307
V. Smith . . . 308
Bowen v. Brecon Railway Co. . 348
Bower v. Angier ... 4
V. Pernie ... 32
V. Law . . . 254
V. Hope Insurance Society 641, 683
Bowman v. Bell . . . 342
Bowra v. Wright . . 401, 479
Bowser v. Maclean . . . 267
Bowyer v. Beamish ... 87
V. Bradshaw . . . 503
Box, Be 634
Boxon V. Williams . . .386
Boyce, Be . . . 594, 612
Boycott, Be ... , 612
Boyle, Ux parte . . , 390
Be . . . .521
Boyse v. Colclough ... 44
V. Rossborough . . 213
Bozon V. Bolland . . 496, 497
Brace v. Duchess of Marlborough 392, 393
Bracey, JJe . . . 515,516
Brackenburg, Be . . 612, 614
Bradford w. Belfield . . .430
V. Brownjohn . 159, 161
V. Earl of Romney . . 468
Bradley v. Munton . . 440, 615
Bradshaw, Hx parte . . . 601
V. Bradshaw . . 448
Brady, Be ... . 522
Brancker, Hx parte . . . 334
Brandon v. Brandon . 79, 348, 371
Brass, Be .... 601
Brassington v, Brassington .
Braund v. Earl of Devon
Bray v. Akers .
Brealey's Settled Estates
Breech Loading Armoury Co
Brent v. Best
Brett's Case
Brewin v. Austin
Bridges v. Huxman
Robinson
Bridgewater v. De Winton
Biidgman, Be .
Bridport Old Brewery, Be
. 496
. 532
. 136
. 619
Be 680
■ . 162
664, 665
. 373
. 212
. 450
. 34
. 613
. 674
Digitized by Microsoft®
TABLE OF CASES.
PAGE
. 305
. 305
. 662
241, 402
643, 645
. 635
Bridson v. Benecke
V. McAlpine .
Briggs, Ex parte
V. Chamberlain
Brighton Club, Be
Briscoe, Ee
V. Great Eastern Ry. Co. 317, 324
Bristol V. North Somerset Ry. Co. 707
Bristow V. Booth . . 605, 610
Bristowe V. Whitmore . . 407
British and Foreign Gas Company,
Re .■ . . . 645,648
British Mutual Investment Co. v.
Cobbold ....
Broad v. Wickham
Broadbent v. Imperial Gas Co.
Broadwood, Ee .
Broadwood's Settled Estates, Ee .
Brodie v. Bolton
Bromage v. Davies
Bromhead v. Hunt
Brompton (Incumbent of), Ex parte
Brompton Waterworks, Ex parte
Brook V. Brook .
Brooke v. Brooke
V. Haynes
. — V. Mitchell .
V. LordMostyn
Brookes v. Brookes
Brooks V. Cock .
:— V. Hertford .
Brougham v. Squire .
— V, Broughton
. Brown, Ex parte
' — V. Fenwick .
' V. Hayward
«. Higgs
V. Kennedy .
V. Oakshot
V. Eye
V. Stenson
V. Tanner
V. Weatherby
Browne, Ee
V. Blount
V. Groombridge
V. Yeall
Brownlow v. Metropolitan Board of
Works
493
344
271
619
581
223
493
496
540
565
. 613
. 476
. 458
. 554
. 137
. 342
. 295
. 479
. 469
. 370
. 530
249, 695
. 584
138, 212
. 241
. 458
. 470
225, 700
. 489
. 409
. 212
579
345
224
237
521,
278
Brunskill v. Caird
Brutton, Be
Bryan v. Cormick
V. Mansion
V. Wastall
Bryce v. Bury .
Bubb V. Yelverton
Bucoleugh (Duke of)
field .
Buchanan, Ex parte
■ V. Greenway
Buckeridge v. Whalley
Buckingham v. Sellick
r V. Sheffield .
Buckmaster v. Harrop
Buckworth v. Buckworth
Bugden v. Bignold
Bulkeley v. Earl of Bglinton
V. Hope
Bull V. Palkner
V. Withey
Buller V. Butler
Bullock V. Menzies
Bunbury, Ee
Bimnett, Ee
Burgess v. Burgess
' V. Hatchley .
V. Hills
Burke v. O'Connor
Burley's Estate, Ee .
Burmester v. Moxon .
Burnell v. Wellington
Burney v. Morgan
Bm-nham National Schools
Burrell v. Smith
Burridge v. Roe
Burroughs v. Oakley .
Burrowes v. Lock
Bury V. Allen .
Bush, Be .
Busk V. Fearon
Butcher v. Butcher
Bute (Marquis of), Ee
Butler V. Oumpston .
Butler's Will, Be
Buxton V. James
V. Monkhouse
Byrch, Be
Byron (Lord) v. Johnstone
Bywater, Ee
FAOE
. 580
. 492
345, 878
. 219
. 21
. 387
. 259
Wake-
. 280
. 679
. 405
. 153
. 486
. 77
. 443
. 115
. 397
611, 613
. 37
. 388
. 136
. 115
. 142
. 620
. 634
. 312
. 313
. 313
. 375
. 620
. 369
. 90
75, 79, 80
. 533
. 223
406, 407
. 448
. 448
. 176
. 103
. 412
. 443
. 596
. 146
. 581
292, 293
. 378
. 513
. 313
. 342
Digitized by Microsoft®
TABLE OF CASES,
XXVll
c.
Caddick's Settled Estates .
Cadman v. Homer
Oaleraft v. Thompson
Caldwell v. Bayliss . , .
UaledoQian Eailway Co. v. Sprott .
Calley v. Richards
PAGE
tjl8
448
272
258
280
33
. 480
696, 697
. 444
. 462
. 226
. 462
Calmady v. Calmady .
Calne Railway Co., He
Calverly v. Williams .
Calvert v. Godfrey
V. Sebright
Camden v. Benson
Cameron's Coalbrook Railway Co.,
Be 33
CampbeU, Ee . . . .613
u. Allgood . . .258
V. MuUett . . .175
Cane v. Martin . . . .497
Cann, Be 579
■ «. Cann. . . . 456
Cannon v. Johnson . . . 481
Cant, Be 584
Canterbury (Archbishop of), -Eic
parte ..... 560
Capes V. Rutton . . . 284
Capps V. Capps .... 80
Capron v. Capron . . 160, 220
Cardell v. Hawke . . .217
Oardick v. Masson ... 91
Carew v. Cooper . . . 345
Carey v. Burtie. . . . 164
K. Hills . . .216
Cargo ex Sultan . . . 412
CarJ.isle (Countess of) v. Lord Berkley 343
Carlton v. McEnzie . . . 136
Carmarthen and Cardigan Railway
Co., Ex parte . . . 586
Carmichael v. Carmichael . . 154
Carpenter, Be . . . . 606
Carpmael v. Powis . . . 469
Carr v. Estabrook . . . 145
Carrington v. Nuttall . . 47
V. Payne . . . 213
Carrodus v. Sharp . . . 447
Carr's Settled Estates. . . 628
Carter v. Barnardiston . . 214
V. Carter . 189, 393, 498
v. Green . . .247
PAGE
Carter v. Sebright . . . 614
V. Taggart - . . 140, 143
Cartier v. Carlisle , . .313
Cartwright v. Shepherd . . 84
Carven, Be . , , . 524
Cary v. Faden . . . 289, 290
—. V. Longman . . 289, 290
Oasborne v. Barsham , . .48
Caslon V. Forbes . . , 366
Cassavetti v. Cassavetti . . 192
CasselU. Stiff . . . .291
Castle V. Wilkinson , . . 447
Catholic Publishing Co., Be 643, 645 '
Catlin, Be . . . .524
Cato V. Irving .... 411
Cator V. Reeves .... 368
Catton V. Wyld. . . . 450
Cavendish v. Cavendish . . 464
— V. Mercer . . . 115
Cawley and Whatley, Be . . 522
Cawthorne, Be . . . . 592
Central Railway Co. of Venezuela.
V. Kiscb . . . 468, 661
Chadwick v. Chadwick 77, 79, 82, 86
Chaffers v. Headlam ... 93
. 582
254, 258
Chamberlain, Be
Ohamberlayne v. Duinmer
Chambers, Be i
V. Goldwin
Chambris v. Goldwin .
Ohampney, Expa/rte .
Chandler, Be .
Chapell V. Sheard
Chaplin v. Chaplin , .
Ohapman v. Chapman
V. Gibson
V. Smith
and Shaw, Be
Chappell V. Davidson
V. Rees
V. Sheard
Charingbould v. Curtis
Charlesworth v. Haigh
Charlton v. Newcastle and Carlisle
Railway Co. .... 325
V. Poulter . . .285
Chatfield v. Berchtoldt . . 5
Chatham v. Higginbottom . . 179
Chamicey, Be . . . . 612
Chavanv v. Van Sommer . .174
524, 628, 630
154
378
115
492
292
162, 373.
493
. 457
. 47
. 103
252, 313
. 357
309, 313
. 441
. 341
Digitized by Microsoft®
TABLE OF CASES.
PAGE
Chawner's Trusts, Be. . . 634
Cheats V. Kenward . . .441
Chelmsford Grammar School, Re . 245
Cheshimt College, Re . . 569, 579
Cheslyn Hall, Be . . . 492
Cheslyn v. Dalby . . . 550
Chester v. Chester . 80, 230, 240
Chichester v. Marquis of Donegal 34
^ V. Hunter ... 89
Chilcote, Re . . . .513
Chinnock v. Marchioness of Ely . 450
Chisholm v. Ferguson . . 362
Chislehurst College, iJe . . 532
Chomley v. Countess of Oxford . 422
Ohowick V. Dimes ... 76
Christchurch (Dean of) Ex parte . 584
Christie v. Cameron ... 4
V. Ovington . . . 729
Christ's Hospital v. Grainger . 542
Chubb V. Petipher . . .485
V. Stretch . . .146
V. Witt . . .188
Church Estate Wandsworth, Re . 540
Churchill v. Salisbury and Dorset
Railway Co 316
Churton v. Douglas . . 283, 285
Cilfoden BeneBt Building Society,
Re 654
City and County Bank, Re . 649, 650
City of London Brewery Co. v.
Tennant . 253, 254, 268, 273
City of London Financial Associa-
tion, Re . . . 650, 651
Clagett V. Phillips ... 33
Clarendon (Earl of) v. Hornby 479, 480
. 126
. 142
. 305
1 444
Clark, Be
Clark V. Cook .
V. Ferguson .
V. Grant
V. Malpas
V. Tipping
V. Ward
Clarke, Ex parte
V. Clark
V. Cost .
V. Earl of Ormonde
V. Taylor
V. Tipping
V. Wilson
Clavering v, Claverinsc
. 91
. 606
. 658
273, 450
. 155
. 154
. 242
153, 154
. 448
. 259
Olavering's Case
Clay, Ex parte
V. Kufford
Claypole (Rector of). Ex parte
Clayton v. Clarke
• V. Fishwick
- V. Rowland
Cleland, Ex parte
Clement v. Maddick .
Clement's Case .
Cleveland's Harte Estates
Clifford V. Turrill
Clift V. Watkin .
Clifton V. Burt .
Clinan v. Cooke
Clinch V. Financial Corporation
Ciine's Estate, Be
Clive V. Beaumont
Clossey, Be
Clough's Estate
Clouten, Ex parte
Glutton, Be
Cobbe, Be
Cobbett V. Woodward
Cobden v. Maynard .
Cockayne v. Harrison.
Cockburn v. Peel
V. Raphael
Cockle V. Whiting
Cockroft V. Sutcliffe .
Cooks V. Jones .
v. Manners
Codrington v. Parker .
Cogan V. DufiSeld
Cohen v. Wilkinson .
Colbourn v. Simms .
Cololough V. Sterum .
Cole V. Cole
V. Sewell
Colebrooke v. East London Rail
way Co.
Coleman v. West Hartlepool Rail-
way Co.
Coles V. Trecothick .
Collard v. Allison
V. Roe .
Collier V. McBean
Colliugwood, Be
Collins, Be
PAGE
. 444
. 175
. 444
. 580
. 118
. 257
. 337
249, 259
. 498
308, 313
. 680
. 330
496, 497
. 338
217, 218
, . 443
. 658
. 160
. 438
526, 527
. 618
. 387
. 613
. 592
. 290
. 460
. 498
. 635
343, 345
. 493
. 223
. 383
227, 239
. 378
. 457
. 324
. 287
. 462
. 153
480
316
. 104
. 448
304, 305
. 440
595, 608
. 493
Digitized by Microsoft®
TABLE OF CASES.
Collins Co. V. Brown .
Collinson ■;;. Collinson
V. Lister
Colman v. Duke of St. Albans
V. Eastern Counties Rail-
way Co.
V. Turner
Colnaghi v. Ward
ColsoD, 2Je
Colyer v. Colyer
V. Finch
Combe v. Corporation of London .
Commercial Bank of India, Re 658,
Comming v. Scott
Commissioners of Courts of Jus-
tice, Re ....
Commissioners of Sewers v. Glasse
Consolidated Bank, Re
Constantinople and Alexandria
Hotels Co.
Contract Corporation, Re
Conybeare, Re .
V. New Brunswick Rail-
way Co.
Good V. Cood
Cook, Ex parte .
,Re
V. Bolton
V. Hart .
V. Sadler
Cook's Policy, Re
Cooke V. Forbes
V. Fryer
Cookes V. Cookes
Cookney v. Beavan
Combe v. Corporation of London
Coombe v. Stewart
Coombes v. Brookes
Coope V. Carter
V. Cresswell
' V. Twynam
Cooper, Re
'V. Blumfield
V. Evans
V. Hood
V. Jones
V. Martin
V. Wood
Coote V. Whittington
Cooth V. Jackson
PAGE
313
474
77
378
324
216
29,5
591
79
388
34
,683
443
584
265
648
648
680
613
468
443
175
625
77
224
405
679
450
135
151
5
33
404
613
217
58
163
612
211
164
441
604
457
4
216
443
Cope V. Evans .
^ V. Russell
PAGE
. 187
4
. 163
76, 138
. 441
. 422
Copin V. Middleton .
Coppin V. Coppin
Coquet V. Gibson
Corbet V. Barker
Cor'i (Earl of) v. Russell 389, 391, 697
Cormaok v. Beasley . . . 498
Cornewall v. Cornewall . . 214
Cornish v. Upton . . .290
Corns V. Griffiths . . .309
Corporation of the Sons of Clergy
V. Mose .... 244
Corsellis v. Patman . . . 387
Corslake v. Pill . . . .441
Cory V. Eyre . . . .388
Cosens v. Bognor Ry. Co. 323, 407, 451
Coster V. Coster . . . 143
Cotham v. West . . .364
Cotton, JEJ3 parte . . . 379
Counter v. Macpherson . . 445
Courand v. Hanmer . . . 342
Court V. Barr .... 100
Coventry (Lord) v. Burslem . 165
V. Coventry . . . 224
V. Gladstone . . . 411
Coward and Adam's Trust, Re . 148
V. Chadwick . . . 345
Cowbridge Railway Co., Re .697
CoweU V. Simpson . . . 498
V. Sykes . . . 175
Cowley (Earl of) v. Wellesley 38, 259
Cox, Ex parte .... 393
V. Allingbam ... 58
V. Chubb . . .168
■ «. Cox . . ' . 224, 481
V. Land and Water Journal 290
V. Stephens ... 93
Crabtree, Be . . . 614, 615
Crabti-ee's Settled Estate, Re . 618
Craig V. Wilson . . . 493
Crane v. Price .... 303
Crawford v. Hamilton . . 174
V. North Eastern Rail-
way Co 325
Crawshay v. Collins . 167, 174, 557
V. Maule . 166, 174, 175
Craythorne v. Swinburne . . 163
Credit Poncier of England, Re . 688,
689, 693
Digitized by Microsoft®
TABLE OF CASES.
?AaE
Cresswell v. Bateman ... 81
Creswick v. Harrison . . . 386
Cre'we (Lord) v. Edlestone . . 344
Crisp, Ex parte . . 398, 420
V. Platel ... 34
Croft W.Day . . . .312
Croome v. Lediard . . . 284
Crop V. Norton .... 440
Croskey v. European Steam Ship-
ping Co. .... 86
Cross Charity, Be . . . 242
Cross V. Cross .... 90
— V. Kennington . . 223
Crossley v. Clay . . . 553
V. Derby Gaslight Co. . 306
V. Lightowler . 276, 278
V. Maycock . . . 442
V. Stewart . . . 307
Crouch V. Waller . . 137, 138
Crdwe's Mortgage,. Me . 598
Croxon v. Lever . . 119, 401
Croxton v. May . . 143, 144
Crump V. Lambert . . . 279
Cubitt V. Palmer . . .280
Cudd V. Rutter . . . .441
Gallwick V. Swindell . . 361, 379
Cuinberland v. Copeland . . 290
Cuthing, Be
Cuhder's Estates
Curd V, Curd .
Curran v. African Co.
Currie, Be
V. Pye .
Currier's Co. v. Corbett
Curteis o. Candler
Curtis i;. Curtis
— - — V. Hulton
V. Price
Cuthbert v. Wharmley
Cutler Be
V. Powell
Cutts V. Cooley • .
V. Salmon
595, 696, 598, 608
. 619
. 32
. 155
. 521
. 247
273, 449, 450
. 222
. 491
. 239
. 462
. 249
. 143
. 159
. 469
. 403
D.
Da Costa v. Da Costa. . . 118
Dale V. Hamilton . . . 460
D'Almaine v. Boosey . . 292, 293
Dalmer v. Dashwood . . . 378
DiiltoD, Be
V. Hayter
V. Wilson
Dangan v. Eivaz
Dangar v. Stewart
Daniel v. Harding
V. Skipwith
D,apper v. Durant
Darbey v. Darbey
V. Whittaker
Dare Valley Eailway Co., Be
Darley v. Nicholson .
Darliley v. London, Chatham, and
Dover Eailway Co. . 22, 449, 450
Darthez v. Clemens . . .151
Dartmouth and Torbay Eailway
Co., Be. .... 566
PAGE
132, 591
420
400
325
80
91
369
20
175
441, 445
551, 552
333, 334
Davenport v. Davenport
■». James
■ V. Jephson 45, 46, 301, 305, 306
300, 306
. 595
. 483
. 513
. 494
615, 634
. 93
313, 314
. 448
. 77
257, 258
580, 612
. 613
. 370
. 524
305
367
V. Eylands
Davey v. Miller
V. Wiellisback
David, Be
Davidson v. Leslie
Davies, Be
— V. Boulcott
V. Clough
V. Cooper
V. Davies
• — V. Leo .
Davis, Be
V. Chanter
V. Dendy
V. Dysart (Earl of)
V. Marlborough (Duke of) 336,
342, 344, 345, 349, 378
Daw V. Eley . 105, 302, 307, 308
37, 154, 464
. 513
. 344
. 342
. 258
. 407
. 530
. 498
. 253
. 344
. 142
. 307
Dawson v. Dawson
V. Sadler
•■ — ^ V. Yates
Day V. Croft .
V. Merry
Deane v. Byrnes
Deane's Charity
De Bay and Griffin
Deere v. Guest .
Defries v. Creed.
De la Garde v. Lempriere
Delame v. Dickenson .
Digitized by Microsoft®
TABLE OF OASES.
XXXI
FAOB
De la Salle v. Moorat . . . 217
De la Torre v. Bernalls . . 21
De la Touche's Settlement 455, 458, 591
Delevante, Be . . . .217
Delme, Be . . . .561
Demainbray v. Metcalf . . 380
De Manneville v. De Manneville . 115
Dempsey v. Dempsey. . . 464
Dennis, Be . . . 527, 634
Denny v. Hancock . . . 452
Dent V. Auction Mart Co. . , 271, 273
V. Turpin . . .313
Denton Colliery, Be . . . 662
V. Dormer . . . 468
V. Macneil . . . 661
Derbyshire Eailway Co. v. Bain-
brigge 390
Dering v. Winchilsea (Earl of) . 161
De Tabley's Settled Estate . . 619
Detillin v. Gale. . . .374
BeTiaSorA, Ex pwrte. . . 526
Devaynes v. Morris ... 79
w. Noble . . 156,173
De Visme v. De Visme . 464, 465
De Vitre v. Betts . . .307
Devon and Somerset Hallway Co.,
Be 705
Dewell V. Tufnell . . .470
De Winton v. Mayor, &c., of Brecon 340,
345
Dick V. Milligan
Dickson, Be . 517, 518, 521
V. Clarke
Dimson's Estate, Be .
Dines v. Blake .
Dinwiddle v. Bailey .
Disney, Be
Dixon V. Astley
V. Dawson
V. Jackson
V. Muckleston
V. Pyner
V. Smith
V. Williamson
Dobson V. Groves
D'Oechsner v. Scott .
Doe d. Pate v. Boe
Doggett V. Eastern Counties Eail-
way Co.
Dolby V. Challin
552
522
4
. 670
. 553
. 150
. 143
. 448
. 224
569, 579
. 388
. 461
. 108
. 493
. 553
135, 138
. 108
,87
22
FAOE
Dolman, Be ... . 513
Doloret v. Rothschild . . . 441
Donaldson v. Donaldson . . 445
Doncaster Permanent Building So-
ciety, Be
Done's Case
Donovan v. Fricker .
Domer v. Fortescue .
Douglas V. Douglas
V. Russell
Doulcet, Be
Dowling V. Betzeman .
V. Hudson
V. Legh .
Downes, Be
V. Smith
Downing v. Burden .
Downshire v. Lady Sandys
Drake, Be
V. Symes
V. Trefuais
Dresser, Be
Drinkwater v. Ratcliffe
Driver's Settlement, Be
Druitt's Case
Drummond v. Drummond
V. St. Albans (Duke
425, 652, 683
. 334
. 447
. 164
191, 222
. 411
. 612
. 441
. 342
. • 58
. 518
. .661
. 210
255, 258
517, 518
. 83
. 580
. 616
482, 486, 487
613
Dryden v. Frost
Duckle, Be
Duckworth, v. Trafford
Dudley Canal Co. v. Grazebrook
Dugdale v. Dugdale .
V. Robertson .
Dulwich College, Be .
Dummer Trusts, Be .
Dumville v. Ashbrooke
Duncan v. McCalmont
Duncombe v. Greenacre
Duncroft v. Albreeht .
Dungey v. Angove
Dunkley v. Dunkley .
Dunn V. Blake .
■ V. Bownas
Dunne v. English
— ■■ V. Doyle
Dunstan v. Patterson, Be
Durell V. Pritchard 253, 254, 268, 273,
449
Dutton V. Morrison . . . 175
Dyer v. Hargreaves . . . 447
of)
680
5
164
375
124
342
281
224
. 262
. 536
572, 580
. 344
. 412
141, 143
. 441
. 453
. 143
. 552
. 238
. 451
. 88
367, 374
Digitized by Microsoft®
TABLE OP OASES.
Dyer's Company v. King
Dyke v. Taylor . . . •
Dyson v. Hornby
E.
Eardley v. Granville (Lord)
Bast Botallaok Mining Co., Be
East Cambrian Gold Mining Co., lie
East of England Bank, Be .
East India Co. v. Keighley .
V. Kynaston .
Eastern Counties Railway Co., Be
FA6B
270
282
465
263
646
652
98
154
306
053
Ebbw Vale Co.'s Case . 677, 678
Eocleshall (Overseers of the Poor
oi),Be . . . .530
Ede V. Knowles . . 384, 387
Edelston v. Vick . . . 312
Eden v. Firth . . . 279, 421
Edenborough v. Canterbury (Arch-
bishop of ) .
Edmonds v. Foley
Edmondson v. Harrison
Edmunds v. Waugh .
Edwards v. Batley
T V. Cunliife
V. Jones
V. Martin
V. McLeay
V. Warwick (Countess of)
Egham Burial Board, Be
Eglinton (Lord) v. Lamb .
Egremont, Be .
V. Thompson
Blderton v. Luck
Eldridge, Be
Electric Telegraph. Co.
Elisha V. Elisha
Ellerthorpe, Be .
Elliott V. Inoe .
325
33
330
373
84
374
445
367
468, 469
161
541
33
579
81,88
48
80.
V. Nott
48,
■ V. North Eastern Eailwa'yCo
■ V. South Devon Railway Co.
Ellis «^. Medlicott
V. Selby .
Ellison, Be
V, Ellison
V. Elwin
V. Sharp
Blmhirst v. Spencer
Elmore, Be
513
305
372
595
137
280
552
. 213
237, 238
611, 613
. 445
. 138
. 87
, . 277
635
634,
Mton, Ex parte . ■ ■ 175
Elwell V. Crowther . . • 277
Ellwood «. Christy . . .306
Elworthy v. Billing . . .461
Ely (Dean of) v. Gay ford . . 93
Emmerson, Be . . . . 650
Emery v. Ware . . 440, 442
England v. Curling . . . 285
V. Downes . . . 223
English Assurance Co., Be . . 679
English V. Baring . . . 154
English Joint Stock Bank, Be . 680
Enthoven v. Cobb ... 34
Errington v. Aynesley . . 441
Erskine, i?e . . . 143,592
Esdaile v. Stephenson . 450, 465
Esaell V. Hayward . . . 175
Estate Co., Be . . . .693
Estates Investment Co., Be . 678
Estcourt V. Ewington . 135, 136
European Life Assurance Co, Be
644, 645, 647, 653
European Co., Be (Exparte Baylis)
652, 653
Evans and Howell, Be . . 554
V. Bagshaw . . . 479
V. Beer .... 103
■ V. Bremridge 162, 163, 457
V. Evans . . . 334
V. Hogg. . . . 431
. 592
. 590
. 456, 458
149, 151, 152
. 670
Evans' Trusts, Be
Everitt, Be
V. Everitt
Ewart V. Williams
Exhall Mining Co., Be
Exmouth Docks, Be . . . 683
Eton College, Ex parte . . 584
Exeter (Marquis of) v. Exeter . 368
Eyre v. Brett . . . .79
V. Marsden . . 224, 248
V. Shaftesbury (Countess of)
115, 123
F.
Pairman v. Green
. 115
Pairthome v. Weston .
. 285
Falcke v. Gray .
. 441
Pall V. Elkins .
. 345
Pallowes V. Williamson
75,83
Digitized by Microsoft®
TABLE OF CASES.
XXXlll
FAOS
Family Endowment, Re . . 683
Fane v. Kichards ... 82
Faning, Be . . . .634
Fanshaw v. Eotheram . . 165
Farina v. Silverlook . . . 312
Farington v. Parker. . . . 222
Farmer v. Bean . . . 461
V. Giles . . . .425
Farr v. Sheriff . . . .222
Farrall v. Davenport . . 87, 443
Faulkner v. Bolton . . . 404
V. Daniel . . 366, 371
Fawkner v. Watts . . . 115
Featherstone v. Fenwiok . . 386
Featherstonhaugh v. Fenwick 167, 174
Feaver v. Williams ... 34
Felkin v. Herbert . . . 268
Fell V. Brown .... 420
Fellows, Se . . . 614, 616
Penton v. Brown . . . 447
Fenwick v. East London Eailway
Co 279
Fenwick v. Potts . . .387
V. Eeed . . . .426
V. Reid .... 32
Ferguson v, Tadman . . ^ . 448
Ferrand v. Mayor of Bradford . 274
V. Corporation of Bradford 324
V. Wilson . . .259
Fenao's Case . . . .666
Ferrers (Earl) v. Stafford and Ut-
toxeter Eailway Co.
Ferriers v. Cherry
Ferris v. Mullins
Fiddey, JRe
Field V. Moore .
V. Titmuss
. 557
. 82
. 385, 387
503, 515, 516
. 502
. 217
Fielden v. Buenos Ayres Co. . 493
Fielder v. Higginson . . . 462
Finch, -Be 521
«. Shaw. . . 404,405
■!;. Winchilsea (Earl of ) 76,79
Finnigan v. James
Fisher v. Dixon
V. Fisher
Fitzpatrick v. Mahoney
Fitz William (Earl of) v. Price
Flagstaff Mining Co., Be
Flatcroft, Be . . .
Fleetwood v. Green
308
379
584
154
372
645
604
439
PAGE
Fleming v. Armstrong 224, 481
■!). Self . . . 425,556;
Flemon, Be . . , , 581
Fletcher v. Dodd . . . 343
Flight V. Cook . . . .442
V. Eobinson ... 33
Flint, Ex parte . . .155
V. Brandon . . . 442
Flockton V. Slee ... 82
Flower v. Hartop . . . 462
Fluker, Be . . . .513
Plynn v. Eohertson . . . 552
Foley, Be 513
w. Maillardet ... 5
Foligno V. Martin . . 451, 468
Foljamhe, Be . . . . 512
Follett V. Jeffrys ... 34
Fooks, Be .... 586
V. Wilts and Somerset Eail-
way Co.
Footner v. Sturgis
Forbes v. Forbes
V. Phipps
Ford V. Lord Chesterfield
V. Foster
V. Tynte
V. Wastell
Ford's Charity, Be
Porman v. Homfray .
Porsbrook v. Porsbrook
Porster v. Menzies
Forster's Settled Estates
Forsyth v. EUice
Forteblow v. Shirley .
Fortune Copper Mining
Be . . .
Foster, Be
V. Bonner
V. Dawber
V. Harvey
Fothergill's Case
Fowler v. Bayldon
V. Fosbery
V. Fowler
V. Garliki
Pox V. Charlton
V. Swerkrop .
Foxoraft v. Wood
Poxoroft V. Parris
Foxon V. Gascoigne .
. 323
. 387
222, 245
. 138
. 222
311, 312
256, 258, 259
. 390
531, 532
. 174
. 37
. 4,88
' . 619
. 153
450, 465
Co.,
650, 651
. 138
. 83
. 613
. 493
. 666
. 93
. 453
. 238
. 237
. 498
. 118
. 407
. 165
. 503
Digitized by Microsoft®
TABLE OF CASES.
Prance v. France
Francis v. Brooking
Franklin v. Howes
Pranklinsld v. Ball
Franklyn, Ex parte
Fraser v. Burgess
Prazer v. Thompson
Frederick v. Ajmsoomb
Freeman v. Pennington
Freeman's Estate, lie
French, v. Baron . .
Freske. v. BuUer
Prewen v. Watten
Pricker's Case .
Pripp V. Chard Bail way Co.
Ptugil V. Blake .
Fry V. Noble.
Fryer, Be
Fryer's Settlement, Be
Fulham v. McCarthy
FuUerton v. Martin .
Purness v. Caterham Railway
Pumess Railway Co. v. Smith
Furnival v. Carew
Fussell V. Elwin
Pyfe V. ArbuthnOt
Fyson, Be . . .
G.
Gabriel, Be . . .
Gaitskell, Be .
Gambert v. Ball
Gardner v. Broadbent
V. I^ondon, Chatham,
Dover Railway Co . 339,
V. Marshall
Garey v. Whittingham
Garland v. Garland .
Garrard v. Prankel
Garston v. Asplin
Garth v. Cotton
V. Townsend .
Gartside, Be
Gaskell v. Gaskell
Gaunt V. Pynney
V. Taylor
Gearns v. Baker
PAGE 1
483,486 1
143
381
450
581
407
113
213
79
674
370
5
154
680
344
343
491
216
5f
SI, 625
79,84
. 80
Co.
S4
14, 390
284
441
76
223
516
513
513
295
305
anc
i
,34
I, 345,
6J
)6, 697
143
136
343
457
267
1(
i4, 259
457
612
4^
9,488
2f
)8, 280
223
258
Gedge, Be
Gee V. Atherton
V. Cottle
V. Pritchard
AGE
. 513
. 346
135, 136
290, 314
. 461
Geldard v. Randall
General Bank for Promotion of
Agricultural and Public Works,
Be 689
General Company for Promoting
Land Credit, Be . . . 644
General Exchange Bank, Be . 653
General International Co., Be . 654
General Rolling Stock Co., Be
642, 652, 675
Gent V. Harris .
Gerrard v. Dawes
Gervais v. Edwards
Gervis v. Gervis
Gethjng, In re .
Giacometti v. Prodgers
. 143
. 502
284, 445
203, 214
. 304
. 143
411,
Gibbins v. North Eastern Metropo-
litan Asylum . 427, 438, 439
Gibbon v. Gibbon
Gibbons v. Kibbry
Gibbs V. Harding
Gibraltar (Bank of), Be
Gibson, v. D'Este
V. Goldsmid .
: V. Ingo
■ V. Jeyes
V. Patterson .
V. Seagrine
Giffard v. WiUiams .
Gifford, Ex parte
V. Hort
Gilchrist v. Cator
Giles II. Wilcox
Gill V. Eyton .
Gilpin V. Lady Southampton
Gingell v. Home
Girdlestone v. Lavender
Glaholm v. Barker
Glassington v. Shwaites
Globe (New Patent Iron Co,
Gloucester (Dean of), Ex parte
Glover v. Hall .
Glyn V. Caulfield
Goddard v. Complin
Godfrey v. Sittel
V. Watson
. 370
. 145
438, 442
. 675
. 468
. 284
494
403
449
397
474
163
462
143
290
34
214
212
368
329
285
645
. 583
. 33
. 34
. 393
. 489
258, 371
), -He
Digitized by Microsoft®
TABLE OF CASES.
Goldsmid v. Tun bridge Wells Com-
missioners .... 268
Goodall V. Skeeratt ... 82
Goodohild v. Terrett . . .212
Goodellw. Little ... 34
Goodenough. v. Goodenough . 491
Good Intent Society, Re . . 594
Goodman v. Sayers . . . 553
Goodsou V. Richardson . 253, 264
Goodwin, 5e .... 470
V. Clarke . . . 451
V. Fielding . . .448
Gordon v. Horsfall . . .420
V. Jesson ... 82
. V. Simpkinson . . 165
Gore Langton's Estate, Be . .585
Goring v. Farrell . . . 397
Gotch V. Arnold . . .38
V. Foster ... 38
Gough V. Latouche. . . .81
Gourlay v. Duke o£ Somerset . 550
Governesses Institution v. Eus-
bridger
Grace v. Newman
Graham v. Fitch
V. Oliver
Grant, £x parte
, Be
V. Grant
V. Taylor
Graves v. Wright
Gray v. Chigwell
V. Gray.
. 224
289, 290
. 136
. 447
. 527
. 615
20. 334, 614
. 372
. 215
. 175
. 468
Great Cwinsymlog Silver Lead Co.,
Be
Great Northern Copper Mining
Co, Be
Great Northern Mining Co., Be .
Great Northern Railway Co., Hx
parte ....
Great Ship Co., Be .
Great Western Railway Co.
Bennett
V. Rushout
Greatrex v. Greatrex .
Greedy v. Lavender . 145,
Green, Be . ■ •
V. Green . .
V. Pigot .
V. Pledger
565,
651
644
653
586
. 670
V.
. 259
319, 324
284, 286
211, 225
594, 635
. 266
. 442
. 267
PAGE
Greenacre, Be . . . . 609
Greene. «. West Cheshire Railway
Co. . . . . . 445
Greenfell v. Dean of Windsor . 345
Greening v. Beokford . . . 330
Greenough v. Gaskill ... 33
V. Shprrock ... 90
Greenwell v. Greenwell . . 115
Greenwood v. Bothwell . . 34
V. Greenwood ... 32
V. Taylor . . 217, 218
Gregg, Be . . . .493
V. Slater . . .375
V. Taylor . . .513
Gregory v. Mighell . . . 444
V. Pilkingtqn . . . 374
Gregson v. Booth . . 214, 215
Grey v. Metropolita,n Railway Co. 433
Grierson v. Eyre . . . 259
GrifBes ■!). Griffies . . .481
Griffith V. Ripketts. . . . 82
V. Vanheythusen- . 79-84
Griffiths V. Griffiths . . 494, 495
Grimstone, Ex parte . _ . . 420
Groom, Be ... . 127
Grove v. Perkins . . . 142
V. Sansom . . . 513
Groves v. Lane .... 93
Grundy v. Buckeridge . . 616
Guard v. Penswick ... 32
Guest V. Cambridge Railway Co. . 697
V. Homfray . . . 469
V. Smythe . . 461, 470
Guibert, Be . . . .613
Guilden Sutton (Incumbent of),
Ex parte .... 583
GunneH v. White . . .222
V. Whitear . . .592
Gunson v. Simpson . . 596, 616
Guy V. Guy . . . . 118
Gwynne v. Edwards . . . 217
Hackett v. Baiss
Hadley, Be
Hagger v. Baker
Haigh, Be
Hair, Be .
Hakewill, Ex parte
273
612
553
553
512
127
Digitized by Microsoft®
c 2
TABLE OP CASES.
Haldane v. Eckford . i
Hale V. Webb .
Haley v. Bannister
V. Hammersley
Halifax, Ex part^
Hall V. Hall
■ • V. Hardy
V. Laver
lie
Hallett, Se
Halliday, Be
Halllwell V. Philipps .
Hallows V. Pemie
Hall's Charity .
Halstead United Charities,
Hatton V. Haywood .
V. Hayward .
Haly V. Barry .
Hamer v. Sharp
Hamer's Devisees' Case
Hamilton v. Buckmaster
V. Hector
V. Houghton
Hammersmith and City Railway
Co. V. Brand .
Hancock v. Attorney-'
Handley v. Davies
V. Parmer
■General
Haney's Trusts, Be
Hankey v. Vernon
Hanover (King of)
England
Hansom v. Keating
Hanson v. Derby
V. Gardner
Harbidge v. Wogan
Harbord, Ex parte
Harding, Be
V. Harding
FAOK
3, 189, 221, 222
. 161
. 115
. 379
. 387
105, 285
. 442
. 497
. 518
. 619
. 258
. 661
. 530
. 585
. 391
. 697
. 333
. 442
. 666
. 440
. 442
. 462
V. Metropolitan Railway Co.
Hardman v. EUames .
Hare v. Hare ....
V. Horton
V. Lea ....
V. London and North West-
ern Railway Co. ,
V. Rose ....
279
367
224
425
591
386
Bank of
611, 613
141, 142
258
257
457
584
521
208,
468
445
33
213
379
701
185, 187, 188,
324
222
Hargreave's Settled Estates, Be 618, 629
Hargreaves v. Wright. . 598, 607
Harloe v. Harloe . . . 225 i Hemings v. Pugh
Harmer v. Gooding
V. Plane
V. Priestley
Harnett v. Pielding
Hareington v. Dale
Harris, Be
V. Hamlyn
V. Ingledew
V. Pepperell 432,
V. Rydding
V. Start
Harrison, Be
V. Armitage
V. Boydell
V. Guest
V. Harrison
V. Hogg
V. Kennedy
V. Southcote
V. Taylor
V. Tennant
Harsluck v. Pedley
Hart V. Tulk .
Hartland v. Murrell
Hartnall, Be
Harvey v. East India Co.
V. Hall .
V. Harvey
V. Shelton
V. Tebbutt
Hattatt, Be
Hawkins, Be
, Ex parte
V. Allen
V. Maltby
Hay V. Palmer .
Haynes v. Cooper
V. Haynes
Haytor Granite Co., Be
Hayward v. Pile
Haywood v. Cope
Heald v. Hay .
Healley v. Thomas
Hector v. JoUiffe
Heighington v. Grant
Helbert v. Banner
Helling v. Lumley
Heming v. Pugh
V. Swinnerton
PAGE
. 555
. 304
. 415
. 444
. 168
. 591
. 113
. 213
447, 457, 468
. 280
. 513
302, 304
. 174
343, 348
. 468
. 219
. 295
137, 402
.. 407
297, 309, 313
. 175
. 221
188, 342
. 524
. 604
. 101
. 525
. 103
553, 554
. 405
. 613
. 250
. 670
228, 238
. 441
. 161
. 498
. 166
. 689
. 82
. 448
4
. 146
. 156
. 154
664, 665
. 445
. 151
. 553
. 157
Digitized by Microsoft®
TABLE OF CASES.
Hemsley, Re . ^ .
Hemsworth v. Brian .
Henderson v. Bamber .
V. Dobbs
V. Lacon
Henry, Ex parte
■ V. Great Northern Eailway
Oo.
V. Wyatt
Hepburn v. Lordan .
Herbert, Re ... .
Hereford (Bishop of), Ex parte
Hereford and South Wales Waggon
Co., Re.
Hering v. Lord Winchelsea
Herman v. Hodges
Herrett v, Reynolds
Herring v. Clark
• V. Cloberry
PAGE
620
534
678
223
661
304
325
122
254
614
560
Hervey v. Hervey
Heslop V. Metcalfe
Hewetson v. Todhunter
Hewitt, Re
V. Loosemore
V. Nanson
Hewitson v. Sherwin
Hext V. Gill
Heygate v. Annesley
Hibbert v. Hlbbert
Hicks V. Hicks .
Hickinbotham v. Bisgood
Higgins V. Shaw
Higginson v. Clowes
Higgs V. Dorkiss
Higgs' Case
Hiles V. Moore .
Hill Pottery Co., Re
Hill V. Andus .
V. Bonner
V. Buckley
V. Edmunds
V. Gaunt
W.Hill .
V. King .
V. Thompson
V. Turner
Hills V. McEae .
V. Springett
Hind V. Whitmore
Hinde v. Morton
. 653
. 163
380, 442
. 105
. 594
. 34
. 486
. 496
. 93
.. 599
. 388
369, 461
103, 106
. 280
. 138
. 343
. 343
. 156
. 88
. 444
. 486
. 661
342, 393
640, 668, 670
. 329
. 93
436, 447, 448
. 402
. 89
. 114
. 176
304, 305
. 123
. 171
79,81
. 135
75,89
Hindley v, Emery
Hindustan (Bank of). Re
, China, &o. (Bank of),
Hinton, Re
Hipkins v. Hipkins
Hirst V. Denham
V. Tolson
Hirtzel v. Mules
Hitchcock V. Jaques
Hoare v. Osborn
Hoare's Trust, Me
Hobday v. Peters
Hobhouse v. Courtney
V. Hamilton
Hobson V. Ferraby
V. Sherwood
Hodgens
658
513
97
311
161
169
21
229, 238, 239, 241
458, 591
. 146
4
. 314
. 457
. 479
123, 142, 144, 145
. 591
552, 553
. 675
. 347
. 98
. 163
. 612
. 216
. 493
. 290
253, 290
. 89
. 581
. 386
. 252
. 403
. 258
. 222
. 718
513, 514
. 486
77,87
. 153
. 153
. 403
. 360
. 261
. 34
Counties Eail-
282, 284
. 175
. 464
Holt V. Eochdale (Corporation of) 276
Hodges, Re
Hodgkinson •!). E'emie
V. Kelly
Hodgson V. Davidson
V. Hodgson
V. Shaw
Hodson, Re
1). Ball .
Hogan, Re
Hogg V. Kirby .
V. Scott
Holcombe v. Trotter
Holden, Re
V. Heam
V. Waterlow
Holdsworth v. Wakeman
Hole V. Thomas
HoKord V. Phipps
Holland, Re
V. Gwynne
V. Holt
HoUingshead's Case
HoUis V. Bastard
V. Bulpeet
Holman v. Loynes
Holmer v. Turner
V. Upton
Holmes v. Baddeley
V. Eastern
way Co.
Holroyd v. Holroyd
Wyatt
PAGE
268, 449
,Re
Digitized by Microsoft®
TABLE OF CASES.
Holten w. Arthur . . .290
Holyford Mining Co., Be . . 681
Holywell, Re . . . .584
Home Assurance Association, Be 642,
647, 652, 653
Homev. Pattrick
Honnor's Trusts, Be .
Hood V. North Eastern Railway Co,
r V. Oglander
Hoole V. Roberts
Hooper, Be
V. Cooke
■V. Smart
Hope, Be
. Carnegie
■ V. Fox .
■ V. Hope .
■ V. Liddell
Hopkins v. Worcester and Birming-
ham Canal Co.
Hopkinson v. Ellis
V. Burleigh (Lord)
Hopper, Re
Horde v. Suffolk (Earl of)
Horlock V. Smith .
Hornby v. Holmes,
: r V- Hunter
Horne v. Paljick
Homer v. Morton .
Horsey's Claim .
Horsfall v. Hulbert
Horwood V. Schneider
Hoskins, Be .
Hoste V. Pratt .
Hotham's Trusts, Be .
House V. Chapman
Houston V. Brisco
Hovenden v. Anerley .
How V. Vigures
Howard, Be
V. Bank of England
V. Barnwell .
V. Harris
V. Robinson .
Howarth v. Powell
Howe V. MoKernan .
Howel V. George
Howell V. Price .
Howes V. Chapman .
V. McKerman.
136
242
445
440.
374
634
339
447
103
137
. 85
4, 105, 141
33, 496
4, 136,
339, 344
. 224
33, 290
553
238
521
4
152
136
142
689
120, 122
79,84
. 616
. 115
. 580
. 224
. 77
. 88
. 369
. 604
. 107
. 480
. 420
. 34
. 150
. 307
440, 442
. 214
. 248
. 33
Hoy V. Smithies .... 452
Hubbard, iJ« . . . .521
V. Hubbard . . .481
Huberts' Case . . . .123
Hubertson v. Goold ... 81
Huddersfleld (Corporation of) v.
Jacomb .... 553
Hue's Trust, 5e . . .592
Hughes V. Davies . 165
V. Hughes . . . 115
rf. Key . . . .222
V. Morris . . . 369
•U.Wells . . .146
V. Williams . . .371
Hull Forge Co., Be . . . 678
Hull and Hornsea Railway
Be
Hulme V. Tenant
Humber Ironworks, Be 643,
Hunt V. Ehnes .
V. Fownes
V. Peacock
Hunter v. Ayre
Huntington v. Huntington
Huntingtower v. Sherborn
Hurle, Be
Hurst «. Hurst
Hutchings v. Smith
Hutchinson, ije
Button V. London & South
em Railway Co.
V. Mansel
r V. Sealey
Hyde v. Dallaway
V. Hyde.
V. Holland
V. Whitfield
I.
Co.,
. 697
. 146
647,652,653
388
374
717
77
402
91
630
4,368
138
591
West-
268
464
368
422
218
198
333
Ilderton, Be . . . . 513
Imperial Bank of China, Be 652, 658
Imperial Gas Co. v. Broadbent . 268
Imperial Guardian Life Society, Be 642,
643, 647, 653
Imperial Mercantile Credit Associa-
tion, Be . . . .658
Imperial Mercantile Credit Co., Be 681
Imperial Silver Quarries Co., Be . 643
Imperial Steam Co., Be . . 670
Digitized by Microsoft®
TABLE OP CASES.
XXXIX
Inchball v. Barrington
Ingtam v. Waskett
Ingram, Re
Ingrain v. Stifif
Inman ■«. Wearing . 153,
Innisfallen (The)
In'sole, -fie
International Contract Co., Be
International Life Assurance
ciety. Re . . .
Inventors* Association, Re
Iron Ship Building Co., Re .
Ironmongers' Co., Re .
Irrigation Co. of France 642,
Isaac, Re .
Isenberg v. East India House
Jackson v. Davenport .
V. Hobhouse .
V. Jackson
n. Mawby
V. Petrie . 333,
V. Eiga Railway Co.
V. Stanhope .
Jacob, Re
V. Hale
V. Suffolk (Earl of)
James, Ex parte
, Be
V. Allen
V. Aston
V. James . 382,
V. Jones
V. Parnell
Jameson, Re
Jarrold v. Houlstone .
Jarvis v. Abraham
Jarvis's Charity, Re .
J. C, Ex parte .
Jebb V. Tugwell
Jefferson v. Harrington
Jefferys v. Boosey
Jefeyes v. Drysdale .
Jeffrys v. Evans
Jenkins v. Bryant
V. Hiles
Jenkijison «..Makin .
PAGE
269,
279
79,80 1
635
,
281
420
422
411
138
148
,
642
So-
660
643
650
662
,
242
644
675
527
528
Co.
253
450
87
146
115
.
105
443
451
79
,
267
634
21
,
374
,
451
618
,
237
93
387
,422
416
213
,
716
290
,
616
531-
532
,
130
.
80
,
511
,
291
.
594
.
258
494
439
,
187
Jenkyn v. Eow .
Jenkyns v. Bushby
Jenner v. Jenner
V. Morris
Jennings v. Broughton
V. Hopton.
Jenour v. Jenour
Jersey v. Jersey
Jervis v. Beveridge
Jervoise v. Silk .
Jessel V. Tozer .
Jesus College v. Bloom
Jewittj Re
Jewson V. Moulson
Johnson, Re
V. Gallagher
V. Hammersley
V. Horlock
V. Lander
^ V. Teck
Johnson's Settlement, Be
Johnston v. Baker
V. Swan
V. Todd
V. Tucker
Joint Stock Coal Co., Re
Joint Stock Discount Co. v.
Jones, Re
V.
V. Brandon
V. Ohappell
V. Charlemont
V. Creswick
V. Davids
■■ — V. Geddis
V. James
V. Jones
V. Lewis
V. Mitchell
V. Mudd
V. Ogle .
V. Powles
V. Robinson
V. Smith
V. Tripp
V. Williams
Jory V, Cox
Joseph, Re
Joynes v. Statham
Jupp V. Gearing
PAGE
. 367
. 34
458, 457
. 499
. 468
. 439
87, 224
. 581
. 451
. 115
. 120
164, 259
496, 497
. 141
. 580
90, 146
79,80
. 90
. 148
. 87
. 572
478, 479
. 238
48, 224
. 34
644, 672
Brown 80, 93
516, 579
. 390
4
. 260
. 26
. 374
. 163
. , 5
. 616
158, 161, 453
. 584
. 224
450, 465
160, 220
392, 393
. 447
. 346
. 403
76, 239
. 374
. 590
. 444
. 87
Digitized by Microsoft®
xl
TABLE OF CASES.
K.
Kaye v. Johnson
Keane, Be
Keams v. Cordwainer's Co.
Keeler, Se
Kekewich v. Manning
Kelk V. Pearson
Kelley v. Lord Bellew
Kelly V. Hooper
V. Morris
Kelvert's Trusts
Kemball v. Walduck .
Kemble v. Kean
Eemp V. Mackrell
V. Eose
Kemp V. Westbrook .
Kendal v. Grainger .
Kendall, Ex parte . 175,
Kennard v. Kennard .
Kennedy v. Lewis
Kenrick v. Wood
Kensington, Ex parte
V. Bpuverie .
Kent V. Freehold Land Co,
Kentish Eoyal Hotel, Be
Kemaghan v. Williams
Kemick v. Kernick .
Kernot v. Potter
Kerr's Policy, In re .
Kershaw, Be
Keynsham Blue Lias Co., Be
Kibble, Ex parte
Kilmington v. Pratt .
Kimberley v. Dick
V. Jennings .
Kincaird, Be
Kincaird's Case
King, Ex parte
V. Greenhill .
V. King.
V. Savery
V. Wilson
King Edward VI.'s Almshouses,
King's College, Cambridge,
parte ....
King's Cross Industrial Co., Be
Kintrea, Ex parte
Kirkby Eavensworth Hospital,
parte ....
PAGE
437
442
501
503
,
278
,
596
445
,
273
.
374
,
290
286
290
,
242
92
441
87
,
451
380
236
217
218
457
,
20
135
,
386
371
,
662
.
651
319
,
143
,
284
374
385
634
668
,671
.
133
,
92
451
,
284
143
.
662
,
407
372
222
403
449
Be
581
JI/X
584
,
643
TP^
661
£iX
236
Kitchen v. Humble
Kitton, Be
Knapp V. Williams
Knight V. Bowyer
V. Knight
Knott, Ex parte
V. Cottee
Knowles, Be
V. Chapman
V. Spencer
Kynaston v. East India Go.
PAGE
. 79
510, 513
. 344
. 418
. 142
. 392
153, 155, 460, 461
. 120
. 372
. 370
. 446
. 491
. 457
. 387
. 411
372, 373
. 411
. 678
32,34
. 657
. 440
79,84
. 221
248, 532,
539, 540
Lancashire Brick and Tile Co., Be 647
Lancashire and Yorkshire Eailway
Co., Be . . . .579
Lancaster, Be . . . . 138
V. Kennington . 552, 553
Lancaster's Case, Be Albert Assur-
ance Co.
Lance i;. Church
Lacey v. Hill
Lackersteen v. Lackersteen
Lacon v. Allen .
V. Liffen
V. Mertins
Ladbrooke v. Lee
Lafitte and Co., Be .
Lafone v. Falkland Islands Co.
Lama Coal Co., Be .
Lamare v. Dixon
Lambert v. Hutchinson
V. Lambert .
Lambeth Charities, Be
Land and Sea Telegraph Co.,
Landall v. Baker
Lane v. Debenham
V. Newdigate .
Lanesborough v. Jones
Langdale (Lady) v. Briggs .
Langdale's Settlement, Be .
Langdon v. Wilmot .
Langford, Be .
V. Pitt .
Be
679
497
218
649
481
452
285
155
38
634
382
635
439
Langham v. Great Northern Eail-
way Co 268
Langley Mill Co., Be . . 642, 672
Digitized by Microsoft®
TABLE OF CASES.
xli
Langmeade Trusts, Se
Langstaff v. Meagoe .
Langston, Ex parte .
Langtou v. Burton
- V. Horton
Lanoy v. AthoU (Duke of)
Lansdowne v. Lansdowne
Largan v. Bowen
Larkins v. Paxton
Lash V. Miller .
Laslett V. Cliffe .
Latch V. Latch .
Lathropp's Charity, Be
Latimer v. Neate
Law, Be .
V. Hunter
185,
Lawes v. Gibson
Lawrence v. Austin
■ V. Campbell
V. Smith
Lawrence's Case
Lawrie v. Banks
Lawson v. Wright
Lazarus v. Charles
V. Mosley
Lea, Be .
Leather Cloth Co. v
Cloth Co.
V. Hirschfield
V. Lorsont
Leohmere v. Brasier
407
879
387
477
411
217, 218, 397
. 456
. 349
. 223
. 79
. 368
. 216
. 585
. 33
514, 624
. 152
' . 447
. 268
. 34
. 290
. 662
406, 407
. 162
., 297
32,33
. 599
American
311, 312, 313
. 313
283, 285
. 462
104, 105
. 223
Lechmere Charlton's Case
Lee V. Brown .
V. Delane . . .223
V. Heath . . .404
V. Lee .... 76
«. Milner . . .323
V.Park . . .. 214
— ■ V. Simpson . . . 292
Leech v. Schweder . . . 273
Leeds (Duke of) v. Amherst . 165,
256, 259
Leeds Banking Co., Be . .97
Lees V. Coulton . . . 487
V. Lees .... 224
Legel V. Miller .... 444
Leigh V. Thomas ... 75
Leigh's Estate, Be . . 573, 580
Leith V, Irvine .... 371
Leith's Estate . . . .407
Leningham v. Smith
Lennon v. Trapper
Leo V. Lambert
Letham v. Hall
Lethersole v. School for Indigent
Blind .
Lett V. Morris .
Lever v. Davidson
V. Heritage
Lewers v. Shaftesbury (Earl
Lewin, Be
V. Allen
Lewis V. Allenby
V. Duncombe
V. Pnllerton .
V. Hillman
V. John
V. Poole
V. Smith
Leycester v. Leycester
Lightbourne v. Holyday
Like V. Beresford
Lillie V. Legh .
Lily (The)
Lincoln v. Wright
Lindsay v. Gibbon
V. Gibbs
Linford v. Gudgeon .
Lingen, Be
V. Simpson .
PAOE
136
468
334
117
of)
239
58
293
26,92
449
513
. 238
. 502
287, 290 ■
458, 591
. 375
. 402
. 314
. 83
. 86
. 145
. 443
. 326
. 443
. 491
. 411
701
527
174
278
224
458
616
226,
275,
455,
Lingwood v. Stowmarket Co.
Linley v. Taylor
Lister v. Hodgson
Little, Be
Littlehampton Steamship Co., Be.
675, 676
Littler v. Thompson . . . 104
Littlewood v.. Pattison . . 582
Liverpool Borough Bank v. Turner 450
Liverpool Improvement Act, Be . 615
Liverpool Marine Credit Co. v.
Wilson . . . .411
Liverpool (Mayor of) v. Chorley
Waterworks Co.
Livesey v. Livesey
Lloyd V. Attwood
V. Cheetham
V. Johnes
V. Lindsay
V.
277, 324
58, 79, 115
. 387
. 345
. 81
. 345
. 379
Digitized by Microsoft®
xlii
TABLE OP CASES.
Lloyd V. Whittey
Llynvi Valley Coal Co. v. Brogden
Locke V. Foote .
Locket i;. Gary . •
Lockhart v. Hardy
Lockwood, Efc parte
V. Ewer
262
58
. 33
. 513
. 580
379, 380
V. Smith . . .552
Lodge V. Pritchard • . . . 152
Loft V. Leigh. .
hovaas., Be .... 581
London Armoury Co., Re . . 647
London (Bank of), iJe . . 683
London- Bank of Scotland, Re . 676'
London and Birmingham Flint
Glass Co., JJe . . .647
London and Birmingham Railway
Co. V. Winter . . 432, 444
London (Bishop of ), JEx parte 578, 584
V. Webb . . .259
London, Brighton, and South Coast
Railway Co., Re . . 531, 579
London-, Chatham, and Dover Rail-
way Co., Bx parte . • . 566, 583
London (Corporation of). Ex parte 578,
579, 584
London Cotton Co.,- Re . . 670
London and County Coal Co., Re 642,
643
London- and Dover Biscuit Co., Re 670
London Flour Co., Re . 674, 676
London- and Hamburgh Bank (Em-
merson's Case) • . . .654
London- India- Rubber Co.-, Re 649, 683
London Marine Insurance Associa-
tion, fie . . . .683
London and Mediterranean Bank-
ing Co., Re . . . 676, 677
London and Mercantile Discount
Co., jBe . . . .675
London and North Western Rail-
way Co. V. Ackroyd . . 281
V. Gamett . . . 285
V. Lancashire and York-
shire Railway Co: . . . 323
London- and Paris Banking Co., Re 645
London- Quays and Warehouses
Co.Re. . ■ . . . 676
London Suburban Bank, Re . 641
London and Westminster Co-ope-
rative Store Co., jBe . 651, 673
London and Westminster Wine
Co., iJe
Long V. Stone .
Longman v. Winchester
LongstafiFe's Settled Estates.
Lonsdale Vale Ironstone Co.,
649, 650
. 93
289, 290
. 618
Re 674,
675, 676
. 223
. 33
. 412
. 221
V. Wormleighton
Lorenz' Settlement, Re
Loomes v. Stotherd .
Lopez V. Deacon
Lord Cochrane (The) .
Lord V. Colvin .
V. Commissioners of Sidney
277
. 497
. 634
. 480
. 661
468, 469
. 48
. 287
. 253
. 80
. 105
. 595
260, 267
Lorimer v. Lorimer .
Lo's Case
Lovell V. Hicks
Lovett V. Lovett
Low V. Ward .
Lowe V. Innes .
Lower v. Lower
Loweth V. Norburn .
Lowey's Estate, Re .
Lowndes v. Bettle
Lowten v. Mayor of Colchester
Loyd V; Mansell
Lucas V. Calcraft
— '■ V. Lucas
V. Peacock
Ludlow Charities, Re ,
87, 101
. 405
. 491
79,84
. 330
. 540
Ludlow (Corporation of) v. Green-
house ..... 531
Lumley v. Wagner . 281, 284, 441
Lundy Granite Co., Ex parte Hea-
ven
. 671
Lupton- V. White
. 151
Lush, Re .
. 595
Lushington .■!;. Boldero
258, 259
Lutwych V. Winford .
. 462
Lyne v. Willis .
. 119
Lynn v. Beaver.
. 223
Lyon V. Blenkin
114, 115
. 278
Lys V. Lee
. 80
Lytton V. Great Northern Railway
Co. . . . 442,
445
Digitized by Microsoft®
TABLE OP CASES.
xliii
M.
PAGE
Macarthur v. Campbell . . 554
Macaulay, Ex parte . . . 579
Macdougall v. Jersey Imperial
Hotel Co 325
Maoey v. Metropolitan Board of
Works 278
Mackenzie v. Johnston . 150, 151
V. Mackenzie . . . 604
Mackwards y. Smith . . . 295
Mackreth v. Symmons . 406, 407
Mac Eae v. Holdswoith . 297, 298
MoAndrew v. Bassett 310, 311, 312
MoCalmont v. Rankin . , 369
MoCullook, iJe . . . 115,116
McEwen's Case . . . 664
McGregor, Ex parte . . , . 461
McHardy v. Hitclicock . . 33
McHenry v. Dayies . . . 146
Mcintosh V. Great Western By. Co. 33
McKenzie v. Praser . , . .213
McMurray v. Spicer . . . 428
McQueen v. Farquhar . . 431
McVeagh, Be . . . 633, 635
Madrid Railijyay Co., Be . . 644
Magawley, B^ ■ • ■ • 591
Magennis v. Fallon . . . 469
Mais, Be . . , . . .613
Maitland v. Backhouse . . 252
Makepeace ■;;. Eogers . . 150, 157
Maldee v. Merick . . . 468
Malet, Be .... 591
Malins v. Greenway ... 87
Mallack V. G3,lton 118, 119, 137, 401, 402
MaUam v. May . . . 285
Mallin, iJe . . . .624
Malmshury v. Malrosbury . . 456
Man V. Ricketts . . . 213
Manby, v. Be.wioke ... 33
Manceaux, Ex parte . . . 304
Manchester and London Life As^
surance Association, Be . ., 650
Manchpster New College 245, 529, 530
Manchester Queensland Cotton Co.,
Be ^ . . . . 675, 676
Manchester Railway Co. v. Great
Northern Railway Co- • • 323,
V. Worksop Board of Health
268, 277
Manchester School Case . ,
Manchester, ShefiBeld, and Lincoln
shire Railway Co. .
Mandeno v. Mandeno
Manlove v. Bale
Mann v. Stephens
Manners v. Bligh
Mansel v. Evans
Mansell v. Feeney
Manser v. Dix .
March v. Lee .
Marezzo Marble C9., Be
Margetson v. Wright .
Marine Investment Co., Be
Marlborough Club Co., Be
Marlborough v. Davis
Marlborough (Duke of ), Be
Marlborough School, Be
Marling v. Stonehouse, and Nails-
worth Railway Co.
Mamer's Trusts
Marsh v. Conquest
V. Sibbold
FAOE
245
. 579
. 459
372, 373
. 284
. 290
. 263
. 32
. 34
. 393
. 649
. 298
. 673
650, 653
. 345
. 574
. 536
Marshall, Be .
V. Cane
. 435
. 592
. 293
. 48
619, 620, 622
. 370
V. CoUett
V. Fowler
V. Glamorgan Iron Co,
V. Shrewsbury.
Martin^ Be . .
V. Frost
■ — — -17. Hadlow_ .
V. Headon
— V. Martin
V. Paxton
V. Pycroft
Martin's Case .
Martyr v. Lawrence
Mary Ann (The)
Mason, Be .
V. Broadbent
; V. Murray
Massey, Be
-_ V. Banner
Mather v. Praser
Mathew v. Bowler
V. Jennans
143
662
422
. 493
. 20
82, 460
254, 270, 273, 450
. 214
. 245
. 444
. 661
. 260,267
. 412
. 592, 594
. 373
. 290
. 516
. 151
. 361, 379
. 407
. 170
Mathews v.
way Co.
Mathewman's Case
Great Northern Rail-
, 325
. 146, 667
Digitized by Microsoft®
xliv
TABLE OP CASES.
PAGE
Mathison v. Clarke . . . 370
Matlock Old Baths Co., Re . . 659
Matterson v. Blderfield . . 425
Matthews, iJe . . . .616
Matts V. Hawkins . . . 280
Maudesley,i7. Maudesley . . 701
Maw V. Pearson ... 86
Mawer's Case .... 334
Mawson v. Fletcher . . . 452
Maynard's Case . . . 666
Maxwell v. Hogg . . . 313
Meade v. Norbury . . . 165
Meaden v. Sealey . . . 342
Meddowcroft v. Campbell . . 85
Meggott V. Meggott . . . 490
Mendes v. Gruedalla ... 93
Merchant Taylors' Company, Be . 584
V. Attorney-General . 241
Merchants' and Tradesmans' Assur-
ance Society, Be . . . 683
V erry wether «. Mellish . . 497
Merton College, Oxford, Be 578, 584
Mestaer v. Gillespie . . 369, 411, 447
Metcalfe v. Beckwith . . .489
Metropolitan Ccfanties Society v.
Brown .... 362, 379
Metropolitan Bail way Warehousing
Go., Be . . . .643
Mette's Estate, Be . . . 583
Meyrick Fund,- Be . . . 537
Michelmore v. Mudge . . 138
Michell, 5e . . . .634
Micklaw v. Elmore ... 91
Micklethwait v. Micklethwait 165, 258
V. Nightingale . . 444
Midland Counties Benefit Building
Society, Be . . . .683
Midland Eailway Co. v. Ambergate
Bail way Co.
■ V. Homing
Middleton v. Cator
V. Chichester .
V. Magnay
Midleton (Lord) v. Eliot
Mildmay iJ. Quicke .
Mildred o. Austin
Miles V. Harrison
V. Presland .
V. Thomas
Milford V. Reynolds .
. 268, 324
. 554
. 237
. 103
. 437, 451
. 374
. 482, 486
. 391, 697
225, 236, 240
. 330
. 285
245
Miller, Be
V. Marriott
Millington v. Fox
Mills V. Bowyer's Co.
V. Dudgeon
V. Farmer
V. Finlay
Milne, Be
Milaes V. Gery
Milward, Be
Milward's Estate, Be
Miner v. Grilmore
Minerva Banking Corporation, Be
Minet v. Morgan
Minton v. Kirwood . . . 440
Mitchell w. Dors . . .259
V. Heynolds . . .285
Mitford V. Eeynolds . . .239
Mockett's Trusts, Be . . 634
Moet V. Couston . . . 313
Mogg V. Mogg .... 267
Moggridge v. Thackwell . . 238
Mole, Be 520
-■ — V. Mansfield . . . 480
Monkhouse v. Corporation of Bed-
ford 405
Monro v. Taylor . . . 439
Montague v. Flockton . . 285
Monteith v. Taylor . . 76, 92
Monypenny v. Monypenny . 20, 202
Moore v. Darley . . . 554
V. Greg
V. Painter
Moorhouse v. Lord
Mordue v. Palmer
Morgan, Be
V. Boult
V. Puller
V. Lewis
V. Scudamore
V. Seaward
V. Shaw
Morice v. Bishop of Durham
V. Swaby
Morison v. Moat
V. Morison
Morley v. Baker
V. Tunstall
Mornington v. Mornington
Morrell v. Fisher
FAOB
. 330
. 481
309, 312
551, 552
89,90
. 238
. 497
. 581
. 550
. 623
. 624
. 277
659
32, 34, 266
. 442
. 370
. 221
. 552
. 591
. 553
307, 308
. 403
. 87
. 303
. 448
. 237
. 32
. 314
. 343
. 423
. 209
. 34
. 224
Digitized by Microsoft®
TABLE OF OASES.
xlv
Morrell v. Wotton
Morret v. Paske
Morrice v. Bank of England
Morris v. Ashbee
V. BuU .
Morris' Oase
Morris' Settled Estates, Se
Morris and Brett's Case
V. Colman
■- V. McNeil
V. Morris
~ V. Stephenson
V. Wilson
Morrison v. Morrison
Morse v. Martin
V. Merest
V. Roach
Morshead, Ee .
, Ex parte
Mortimer v. Shortall
Mortlock V. BuUer
Moscow Gas Co. v.
Financial Society
Moseley v. Baker
V. Simpson
—r-. — V. Virgin
Moss, Be .
Mostyn v. Emanuel
Mountford, Ex parte
Mouutstuart v. Mountstuart
Moxey v. Bigwood
Muggeridge's Trusts, Me
MuUings V. Trinder
Mullins V. Hussey
MuUoney v. Stevens
Mumford v. Creswell
Mundy v. Jolliffe
V. Mundy
Munns v. Isle of Wight Ey.
Munroe v. Douglas
Munster's Case .
Murray, Ee
V. Benbow
V. East India Co.
V. Elibank
V. Walter
Murrows v. Wilson
Mnsselbrooke v. Dunkin
Mutter V. Hudson
Muttlebury v. Haywood
FA.OC
32
393
214
286
464
663
585
664
285
451
164, 165, 552
442
443
407
457
443
213
561, 562, 563
563
468
439, 442, 445
Ihtemational
652
425
553
442
514
86
114, 115, 386
117
. 444
634, 635, 666
. 440
. 469
. 297
. 227
. 443
. 491
. 451
. 222
. 661
. 123
. 290
. 87
. 142
32,83
. 652
. 554
. 217
. 494
Co.
N.
Nail V. Puntor .
Nalder v. Hawkins
Nancey v. Martin
Napier v. Napier
Nash, Be
V. Nash
PAGE
. 146
. 118
J . 138
. 143
. 615
. 86
V. Worcester Improvement
Commissioners . . . 460
Natal, &o., Co., Ee . . 642, 643
National Benefit Building Society,
Be 425
National Credit Co., Ee . . 650
National Financial Association, Be
643, 679
National Savings Bank Association,
Be ... . 647, 653
National Society v. School Board
of London .... 535
Naylor- v. South Devon Railway Co. 325
V. Winch . . . 456
Neath «. Abbott . . .444
Needham v. Oxley . 302, 306, 307
Needham's Case . . . 664
Nelson v. Book .... 151
Nessom v. Clarkson . . . 447
Nether Stowey, Be . . . 580
Nettleship, Ex parte . . . 387
New V. Bonaker . . . 242
New Brunswick Co. ■;;. Conybeare 661
New Brunswick Railway Co. v.
Muggeridge . . . 468, 661
Newberry, Ee . . . .216
V. Benson . . .151
V. James . . . 314
Newburgh v. Eickerstafife . .164
Newbury v. Marten . 113, 119, 401
Newby v. Harrison . . . 252
Newcastle (Duke of), Be . 114, 697
Newcombe v. Downe . . . 359
Newell V. Wilson . . . 305
Newland v. Attomey-Greneral . 239
Newman, Be . . . 513, 521
V. Brandling . . . 285
V. Selfe . . . .363
Newman's Settled Estates . . 624
Newport Abbey and Hereford Rail-
way Co., Be .
565
Digitized by Microsoft®
xlvi
TABLE OF CASES.
New Quebrada Co., Me
New Steam Tug Co., Limited v.
Singleton
Newton- u. Cowie
: V. Eowse
Newton's Charity, Be
Nias V. Northern and Eastern Rail-
way Co.
Nichol,'!;. Jones
Nicholl V. Jones
Nichols V. Somerville .
V. Ward
Nicholson «. Knapp .
■, V. Eevill
'(/. Tatin
Nightingale v. Goulbum
V. Lawson
Nisbet K Murray
Noad V. Backhouse
Noble V. Meymott
■ V. Stow
Nokes V. Lord Kilmorey
Norbury (Lord) v. Kitchen
Norman v. Mitchell .
Norrisf. Cotterill
; V. Le Neve .
V. Norris
■ — ; V. Wright
North British Railway Co. v,
Trowsdall ...
North Eastern Railway Co. v.
Crossland
V. Martin
Northwick (Lord), Ex parte
Norton. u. Cooper
V. Nichols
V. Pritchard .
V. Turvill
V. White
Norway v. Eowe
Norwegian Iron Co., i?e
Notley V. Palmer
Nott V. Riccard
Nowell, He
V. Nowell
Noyes' Settled Estates
Nugent V. Vetzera
Nutbrown v. Thornton
659
328
295
161
530
. 34
. 34
. 32
. 408
135, 136
. 325
. 163
. 370
. 239
158, 161
. 224
340, 345
. 222
. 80
. 469
. 277
323, 325
5
489
218
554
297
280
150
579
372
298
. 97
. 146
. 90
. 257
. 643
80, 581
. 469
. 330
. 176
. 619
. 117
. 441
0.
FAGZ
Cakes v. Tarquand . . 661, 662
O'DonneU's Trusts . . .598
Ogden V. Battams . . 149, 152
V. Lowry . . . 216
Okill V. Whittaker . . . 468
Oldfield V. Cobbett . . 89, 90
Oliver, Be . . . .499
V. Richardson. . . 491
OUendorf v. Black . . .291
Ommaney v. Butcher. . 237, 239
Onslow's Trusts, Be . . .133
Onyon v. Washboume . . 344
Orange v. Pickford . . .213
Ord, Be 613
V. Noel .... 445
Oriental (The ) . . . .412
Oriental Commercial Bank, Be . 676
Oriental Inland Steam Co.
Briggs .
Oriental Steam Co., Be
Ormerod, Be
Ormond v. Townsend
OiiettjUx parte
Osborn, Be
V. Morgan .
V. Osborn
Osborne, Hx parte.
V. Foreman
V. Harvey
V. Williams
Otter V. Lord Vaux
Ottley V. Gilby.
Ottoman Co., Be
Otway V. Wing .
Owen, Be.
V. Davies
V. Griffith
Owens V. Dickinson
Oxford Charities, Be
V.
. 442
. 671
. 594
. 338
. 387
. 596
. 142
. 481
. 425
. 460
. 342
. 154
. 440
. 223
. 680
. 136
. 594
. 275
. 164
214, 217
. 542
Pacific Steam Co. v. Gibbs
Packer, Be
Paokington's Case
Packman & Moss, Be.
Page V. Adam .
Paget V, Ede .
Pain V. Coombs
252
619
258
446
452
369
443
Digitized by Microsoft®
TABLE OF CASES.
xlvii
PAGE
Palin u, Gathercole . . . 314
Palk V. Clinton . . . .420
Palmers. Carlisle (Earl of). . 367
V. Danby . . .420
. V. Temple . . . 451
Palmer's Case .... 156
Will, Be . . . 695
Panama and South Pacific Co.
v. Indiarubber and Telegraphic
Works Co 451
Pannell v. Taylor . .' .334
Paragaussu Steam Tramroad Co.,
Be 654
Pare v. Clegg . . . . 341
Paris Chocolate Co. v. Crystal
Palace Co.
Parke's. Charity, Be
Parker, Ex jaarte
V. Butcher
. V. Housefield
V. Morrell
V. Stevens
Parkethman v. White
Parkins. Thorold
Parr v. Lovegrove
Parrott v. Palmer
Parry v. Geeson
.V. Parry
Partington v.- Eeynolds
Parsons v. Beebee
■ V. Dimne .
V. Euddock
Parson's Case .
Partington, Be .
Pasmore, Be
Patch V. Ward .
Patent Artificial Stone Co.
Patent Bread Machinery Co
Patent Floor Cloth Co., Be
Patent Marine Co. v. Chadbum
Patent Screwed Boot Co., Be
Patent Type Founding Co. v.
Walter. . . . 301,306
Paterson v. Paterson . . 604, 605
Paton V. Rogers. . 439, 447, 450
Pawley v. TurnbuU . . • 451
Payne v. Hornby . . • 407
Peacock v. Peacock . . . 174
V. Penson . . .445
V. Sievier ... 26
445
. 530
. 661
. 425
387, 422
. 44
. 45
. 33
449, 468
. 439
. 257
. 75
. 202
.216, 217
388, 605
. 145
. 218
. 661
. 580
. 513
. 34
647
647
650
308
651
Be
Be
Peacock's Settled Estates
Peacocke v. Burt
Pearce «. Chamberlain
V. Pearce
Peareth v, Marriott .
Pearly v. Smith
Peafse v. Hewitt
• — V. Pearse
Pearson's Case .
Pease i\ Coats .
V. Jackson
Peatfleld v. Barlow . •
Peokett V. Loggon
Pedder v. Pedder • .
Peek V. Matthews ■ .
. V. Peek .
Peel's Case . . - .
Peel's School, Ex parte
Pegg V. Winder
Pell If. -Northampton and Banbury
Railway Co. . ■
Pelham (Lord)
(Duohess of)
Pelly V: Wathen
Pemberton, Be .
V. Baston
V. McG-ill
V. Cakes
Be
Be .
Pender^ Be
Penhale Silver Lead Co,
Penhryn v. Hughes- .
Peninsular, &c., Banking Co,
Penn v^ Baltimore (Lord)
V. Bibby
Penney- v. Goode
Pennington v. Alvin . . . 135
Penny v. Watts ■ . . .216
Perceval v. Perceval . . . 225
V. Phipps . . • 290, 314
Perkins, Be . . . .513
V. Ede . . 468, 469
Perring and Kymer-, Ee . : 554
V. Traill . . .240
Perrot v. Perrot . . .258
Perry v. Jenkins ... 87
V. Mitchell . . .307
V. Oriental Hotels Co. . 343
V. Phelips . . .180
V. Philips . . .214
1>. Truefit . . 311,312
PAGB
624
393
175
470
132
160
367
34
658
285
425
498
468
80,84
285
189
. 661
. 535
, 462
496,
323, 451
Newcastle
108
367
522
503
137
156
514
646
163
671
443
306, 307, 308
33
513,
Digitized by Microsoft®
xlviii
TABLE OF CASES.
Perry v. Walker . . . 371
Peruvian Eailway Co., Se . . 644
Peto V. Rye, &c., Eailway Co. . 445
Petroleum Co., Be . . . 651
Peyton's Settlement, Be 600, 604, 634
Pfleger's Trust, Be . . 576, 582
Philips, Be . 519, 576, 615, 616
Phillips o. PHllips . . 157,175
V. Silvester . . . 447
Philpott V. St. George's Hospital . 238
Phippen v. Brown . . 80, 82
Picard V. Hine . . 137, 145, 701
PicUering v. Paokhouse . . 179
V. Pickering . . . 456
Piokford v. Brown ... 80
Pidding v. How . . . 312
Piddock V. Brown . . . 367
Pierce v. Thornby . . . 142
Pigott y. Young . . . 216
Pike V. Nicholas . . . 286
Pilling V. Armitage . . . 444
Pinchard v. Fellows . . .224
Piper V. Coke . . . . • 362
Pitcher v. Hellier . . .342
Pitt, iJe 634
V. Cholmondeley . .154
W.Davis . . .438
Planche v. Colburn . . . 451
Planet Building Society, Be . 673
Plas-yn-Mhowys Coal Co., Be 668, 670
Platel V. Cradock ... 85
Playford v. Playford . . .420
Plumbe V. J'ield ... 84
Podmore v. Gunning . . . 379
Pollard V. Doyle ... 26
Pollock u. Pollock . . .221
Pool V. Sackeverell . . . 104
Poole Firebrick Co., Be (Hartley's
Case) 662
V. Middleton . . . 441
V. Pass . . . .222
V. Shergold . . .448
Pope V. Curt . . . .290
V. Onslow . . .396
Porter, Be . . . 611, 612
Portarlington v. Soulby . . 443
Portland (Duke of) v. Hill . 257, 259
Postlethwaite v. Newport Harbour
Trustees . . . .344
Potter, Be . . . .132
Potter V. Newman . . . 554
Potts V. Leighton . . 342, 348
W.Smith . . .201
■ — V. Warwick Canal Co. . 344
PoweU, iJe . . . .595
V. Aiken . . 262, 267
«. Att.-Gen. . . .238
V. Elliott . . .447
V. Heather ... 79
V. Martyr . . . 465
V. Mathews . . . 595
1;. PoweU . . .487
V. Wood ... 48
Powell Duffryn Steam Coal Co. v.
Taff Vale Eailway Co. . . 446
Powys V. Blagrave . . 258, 343
Pratt V. Harvey . . .238
Frees v. Coke . . . 403, 405
Preston v. Dickinson ... 5
Price, Be 612
V. Berrington . . 89, 90
V. Carver . . 118, 401
«;. Dyer. . . . 444
V. Green . . . 285
V. Great Western Ey. Co. 372
V. McBeth . . .375
— V. Salusbury . . . 443
Primrose, Be . . . . 615
V. Bromley . . . 163
Prince Albert v. Strange 290, 294, 314
Prince V. Cooper ^ . . . 460
Prince of Wales Slate Quarry Co.,
Be 676
Pringle, Be . . . .513
Pritchard v. Arborum. . . 238
V. Fleetwood . . . 378
V. Eoberts . . . 503
Professional, &c.. Building Society,
Be ... .
. 642
Progress Assurance Co., Be .
. 670
Prole V. Soady .
. 138
Propert, ^e . . .
. 606
Pryce v. Bury .
. 381
Pryer v. Gribble
. 446
Pryor v. Pryor .
. 486
Pryse, Be.
. 694
. 37
Pudge V. Pitt .
. 89
Pullen V. Eeady
. 456
Pnlsford v. Eichards .
. 468
Digitized by Microsoft®
TABLE OP CASES.
xlix
PAOB
164, 259
. 445
. 115
. 445
. 515
. 440
Pulteney v. Warren .
Pulvertoft V. Pulvertoft
Purleaze, Ex ■parte
Pye, Ex parte .
Pyne, Se .
Pyrke V, Waddingham
Q.
Quanel v. Beckford . 373, 375, 378
Queen^s Benefit Building Society,
Be 683
Queen's College, Cambjidge, Ex
parte ..... 560
Queensbury (Duke of) v. Sheb-
beare 289
E.
Eadde v. Norman
Bafferty v. King .
Railway Finance Co.,
Bam, Ex parte
Eamsden v. Langley
V. Dyson
Bamsey v. Avison
Band v. Macmahon
Bandall v. Mumford
Be
Banelagh (Lord) v. Melton
Bankin v. Huskisson
r V. East India Docks
Ba^hael, Be,
V. Boehm
■ V. Thames Valley Bailway
Co 445
Bashleigh v. Master ... . 160
Eawkifenseat v. Barker . .78
Bawlings, Be . . . . 626
EawHnson v. Moss . . . 494
Bawson v. Samuel . . . 155
Eeade v. Bentley . . 289, 290
D. Conquest . . . 293
V. Cooper . . . 493
Bede v. Cakes . . . .464
Bedmayne v. Poster . . 386, 387
Eeece, Be 515
V. Taylor . . .332
V. Trye . . . . 33
Eeed v. Don Pedro Gold Mining Co. 444
. 311
. 420
. 653
. 717
. 374
., 444
. 155
. 213
. 76
. 610
. 449
2827285
316, 324
. 612
153, 155
Bees, Ex parte
Reese Eiver Mining Co., Be
(Smith's Case)
V. Smith
PAGE
530
468
661
662
297
128
32,33
32
Eeg. V. Pirmin
Eeiby, Be
Eeid V. Langlois
V. Langton
V. Don Pedro North Del
Eey Gold Mining Co. . . 440
Eemnant v. Holt . . . 429
V. Hood . . . .225
Eenshaw, Be . . . . 687
Bevel V. Watkinson .' . , 373
Bex V. Mildenhall Savings Bank , .555
V. Eussell . . .278
V. Ward . . , 278
V. Wheeler . . . 303
Beyer v. Tombs ... 44
Beynault, Se . . . .611
Eeynell v. Sprye . . 34, 468
Beynolds v. Askew . . . 554
V. Blake . . .469
V. Godlee ... 33
V. Lowe . . , 360
Bhodes v. Mostyn . . . 378
Ehymney Bailway Co. v. Taff Vale
Eailway Co. ... 261
Bice V, Gordon . . . 163
u.'Bice . . . .387
Bichards, Ex parte . . 615, 616
V. Cooper . . . 420
V. Metropolitan Bailway
Co. . . . . .429
V. Millett ... 85
V. Morgan . . 369, 370
r V. Noble . . . 164
V. Platel . . .497
V. Bose . , . 280
V. Scarborough Market . 429
Eiohardson v. De Held . . 136
V. Hastings . . . 285
V. Miller . . .118
' r v- Eusbridger. . . 224
V. Ward . . .349
Eickard v. Bobson . . . 238
Eickards v. Eiokards . . . 481
Eicket V. Metropolitan Eailway Co. 324
Eico V. Gaultier . . .333
Bidout V. Plymouth, Earl of . 343
d
Digitized by Microsoft®
TABLE OF OASES.
Eidgway v. Clare ' .
V. Sneyd
V, Wharton .
Eigby- V. Macnamara .
Einard v. Levinstein .
Eipon (Earl of) v. Hobart
Kisbton v. Grissell .
Eoaoli V. Garvan
Eoberts, Be
V. Albert Bridge Co,
V, Berry
V. Brett
V. Croft
V. Maddocks
V. Price
Eobertson v. Kemble .
V. Norris
V. Southgai^ .
Eobins v. Goddingbam
Eobinson v. Aston
V. Cooper
V. Geldard
V. Governors of London
Hospital
V. Headley
V. Litton
V. Norton
Eobson V, Devon (Earl of)
V. WhittJngham
Eoobe V. Hart .
Eock V. Cook .
Eockall Fishing Co., Re
Eoddam v. Hetberington
Eoebuok v. Chadebet
Eogers, lie
V. Grazebrook
Eolfeu. Eolfe .
EoUeston, Me .
V. Morton
Books V. Lord Kensington
Rooper v. Harrison .
Rose V. Watson
Eoss V. Estates Investment
V. Laughton .
V. Wainman .
Eoundell v. Currier .
Eousell V. Morris
Eow, Re .
V. Eow .
Eowe V, Jackson
PAGE
. 175
. 448
. 443
. 470
. 305
. 268
. 176
104, 115
. 611
. 105
. 468
. 411
386, 387
. 109
. 368
. 80
152, 164
. 87
494, 497
. 113
58
241
. 239
. 342
. 258
. 91
. 92
273, 450
155
. 344
. 654
333, 334
479, 486
. 634
. 372
. 285
. 629
. 390
457, 458
. 387
. 407
Co. 468, 661
. 497
. 164
. 76
. 215
. 581
209, 224
. 142
PAOK
Eowe V. Tweed . • • ^^^
V. Wood . . • 378
Bowbotham v. Wilson . • 280
Eowland v. Cuthbertson . . 491
Eowley, Be . . .615, 616
Eoyal Arch (The) . . .412
Eoyal Victoria Co., Re . . 683
Budge V. Weedon . . . 135
Euffin, Ex parte . . .175
Bufford V. Bishop . . . 379
Eumbold v. Forteath . . 32
Euscombe v. Hare . . 402
Bush, iJe . . • .525
Bushforth, iJe . . . .218
Eushworth v. Barron . . 554
-y. Walden . . .717
Eussell V. Cowley . . • 306
V. East Anglian By. Co. . 344
V. Jackson ... 34
V. Luscombe . . . 174
•V.Smith . . .292
Russell's Estate, Re . . 595, 604
Butherford v. Wilkinson . 343, 345
Eutley V. Gill . . . .464
Eyan, iJe . . . .601
Eyle V. Haggle . 150
S.
Saeny v. Briggs . . . 327
Sainter v. Ferguson . . . 284
Sale V. Sale . . . .118
Salomons v. Laing . . . 324
Salter v. Metropolitan District Bail-
way Co. .... 315
Salvin v. North Brancepeth Coal
Co. . . . ■ . 269,273
Sampson, Re
V. Pattison
217
367
438
161
148
642
Samuda v. Lawford .
Sandby, Ex pirte
Sanger v. Sanger ....
Sanderson, Re .
V. Cockermouth and Work-
ington Eailway Co. . 442, 445
Sanderson's Patents Association, Re 643
Sandon v. Hooper 258, 269, 363, 370, 371
Saner v. Deaven ... 89
Sargent, Re . . . .661
Sarjeson v. Cruise . . . 373
Digitized by Microsoft®
TABLE OP OASES.
li
PAQB
Saumarez, Re . . . . 616
Saunders v. Smith . . . 290
Savage v. Foster . . . 146
V. Snell .... 37
Savin, Be .... 709
Sawyer v. Shute . . . 141
Sayer v. Bennet . . 161, 17.5
Schackel, Hx parte . . .521
Scholefield v. Heafield . . 401
V. Lookwood . . 500, 503
Scholey u. Central Bail way of Vene-
zuela .....
Schrubsole v. Schneider
Scotland (Bank of), Ee
Scott V. Liverpool (Corporation of)
V. Duncombe
662
49
156
151
80
. 331
. 407
445, 450
. 143
. 290
V. Hastings
V. Ifesbitt
V. Eayment
V. Spashett
V. Stanford
Sea and EiVer Marine Ins. Co., Be
642, 643
Seaman, Ex parte
Seeley v. Fisher .
Seixo V. Provenzende
Selby V. Pomfret
V. Selby
SeUs V. Sells .
Senior v. Pawson
Sergison v. Sedley
Seton V. Slade .
— V. Smith
Sewell V. Ashby
V. Crewe Bead
Shaftesbury (Earl of) v,
(Duke of) .
Shapland v. Smith
Sharp V. Foy .
V. Hullett
Sharpe, Be.
Sharpe, Stewart, & Co.
Sharpley, Be .
Shattook V. Shattock
Shaw, Ex parte
,Be
V. Fisher
V. Ehodes
ShefSeld Gas Co. v. Harrison
Shelford v. Baker
. 503
. 313
310, 312
. 396
. 218
. 457
271, 450
. 162
439, 449
. 189
. 216
. 239
Marlborough
339, 344
. 440
. 146
. 91
587, 591
692, 693
. 616
.,Be
146
580
625
441
345
445
80
Shelmardiae, Be,
Shepard v. Brown .
Shepherd v. Churchill
V. Conquest .
V. Oxenford .
V. Titley
Sheppard v. Kent
Sherwin v. Shakspear
PAGE
. 612
. 150
473, 481
. 293
. 174
. 393
. 214
430, 447, 450,
465
Shields Marine Association, Be 648, 683
Shillibeer v. Jarvis . . . 443
Shillito V. CoUett . . .128
Ships' Case . . . .661
Shipton-under-Wychwood, Eector
of. Ex parte .... 580
Shrewsbury Eailway Co. v. London
and North Western Eailway Co. 445
Shrewsbury and Chester Eailway
Co. V. Shrewsbury and Birming-
ham Eailway Co. .
Shuttleworth v. Laycook
V. Lowther
Sichel V. Mosenthal
Sichells' Case .
Sidingham, Be .
Sidney v. Banger
V. Sidney
. 285
. 396
. 374
. 445
. 661
. 114
. 461
. 145
. 214
. 674
345, 378
486, 487
Silk V. Pryme .
Silkstone Colliery Co., Be
Silver v. Bishop of Norwich
V. UdaU .
Simmonds v. Great Eastern Eail-
way Co 497
Simpson v. Bathurst . . 79, 223
7- V. Chapman
176
661
634
76
Simpson's Case
Simson, Be
Sinclair v. James
Singer Manufacturing Co. v. Wilson
301, 306
Singleton v. Hopkins
Sinnett v. Herbert
Skinner, Be
, Ex parte
V. Warner
Skip «, Harewood
Skitter, Be
Slade V. Barlow
-«. Eigg .
Sleeoh v. Thorington
. 4:81
227, 228, 240
613
242
115
407
596
479
. 367, 380
. 141, 142
d 2
Digitized by Microsoft®
lii
TABLE OF CASES.
PAGE
Sleech's Case . . . .175
Sleight v.. Lawson . • 152
Sloper, Re . . ■ .616
— «. Fish. . . 440
Small V. Metropolitan Railway Co. 433
Smallwood v. Eutter . . . 118
Smart v. Morton . . . 280
Smirthwaite's Trusts, Re . 612, 616
Smith, Ex parte {Be Hildyard)
, Ee (19 Beav.)
-, Be (4 Beav.)
Be (Weston's
Ee
Smith's Trusts, Ee
Smith's Case
Smith's Estate, Ee
Smithand Blake, Be
Smith, Knight & Co.,
Case)
Smith, Knight, & Co.,
Smith V. Baker .
— '■ — - V. Cooke
r V. Dixon
V. Dowling
' V. Etches
— — - V. lliffe
V. Jackson
V. Jeyes
V. Lays
V. Leveaux
V. Nelson
V. Peters
— V. Pocook
V. Eeese Eiver Company .
V. Eobinson .
v. Smith (3 Atk.) .
^ ^. (3 Gift) .
V. (L. E. 20 Eq.) .
^ V. (Receiver Order)
■ (3 Drew)
Smyth, Ex parte
-, iJe
Snaggw. Fuzell
Sneesby v. Thome
Snow V. Teed . -
Snowball, Ex parte
Sober v. Kemp .
Sobey v. Sobey .
Society for the Propagation of the
Gospel in Foreign Parts v. At-
torney-General
Sockett V. Wray
387
506
511
592
662
581
554
674
680
369
259
20
33
85
457
447
286
168
150
469
446
493
325
368
123
143
253
337
596
159
616
375
445
222
176
359
221
244
146
Solicitor-General v. Corporation of
Bath 247
Soltau V. De Held . . .278
Somerset and Dorset Railway Co.,
Ee 707
Somerville v. Mackay . . . 174
V. Somei-ville . • 222
South Barrule Slate Quarry Co., Be 671,
672
South Eastern Railway Co., Be . 581
South Staffordshire Railway Co. v.
Hall 92
South Wales Railway Co., Ex parte 585
,Be . . . .615
V. Wythes . . 284, 445
Southey v. Sherwood . . 290, 314
Spackman's Case . . . 644
Spalding v. Ending . . 409, 411
Spargo's Case .... 666
Sparrow, Be ... . 612
V. Oxford and Worcester
EailwayCo 324
Speer v. Crawter . . . 489
Spenoe's Patent Cement Go., Be . 648
Spencer v. Allen ... 97
V. Pearson . . 391, 393
Spensby's Estate, Be . . . 224
Spiller, Ee . . . 635, 663
Spilling w. Skoyles . . .186
Spirett V. Willows . 140, 143, 144
Spurrier v. Fitzgerald . . 443
Squire v. Campbell . . . 268
Stackpoole v. Beaumont . . 145
Stafford Charities, jBe. . .531
Stafford and TJttoxeter Railway
Co., iJe . . . 344,703
Stagoll, ^e .... 80
Stainbank w. Penning. . . 412
V. Fernley . . . 468
V. Sbepard . . . 412
Staines v. Rudlen . . . 368
Stainford v. Hurlstone . . 267
Stainton v. Carjon Co. . 154, 157
Stanhope v. Verney . . .393
Stanley v. Bond 332
(Lady) v. Shrewsbury (Earl
of) 254
Stannard v. Harrison . . . 288
Stansfleld v. Habergham . . 258
Stanton v. Hatfield . , 223
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TABLE OP CASES.
liii
Stapleton v. Haymeu .
Steadman v. Smitli .
Steam Stoker Co., ^e .
Steel V, Gordon .
Steele v. Plomes
Stephens, Ea; partem .
Stephenson v. Green .
Stevens, Ex parte
V. Benning
V. Guppy
V. Keating
PAGE
. 411
. ^80
. 644
4
5
. 155
. 415
. 585
. 289
427, 438
. 304
: V. PiUen . . .223
■ V. Praed ... 22
V. South Devon Ey. Co. . 325
V. Savage . . . 123
V. Stevens . . . 118
V. Williams . . . 405
Steward's Estate, Be . . . 583
Stewart, Re ... . 594
r V. Graham ... . 334
:«. Stewart . . . 456
Stewart's Case . . . 661, 662
Stillwell V. Wilkins . . .379
Stirling, iJe, . . . .496
Stockb.ridge Railway Bill, Ex parte 565
Stockep V. Dawsoq . . . 407
r V. Stocken . . . 115
Stocker V. Wedderjjiirn . . 284
Stockhouse V,. Jersey (Countess of) 387
Stockley v. Stockley . , . 456
Stockport District Waterworks Co.
V. Jowett .... 252
Stockport Waterworks Co. v. Mayor
of Manchester . . . 824
V. Potter . . .277
Stokes V. City OfiSoes Co. . . 270
Stoke's Trusts, iJe . . .612
Stone V. Commercial Railway Co. . 323
V. Godfrey . . . 456
V. Wishart . . .343
Storer v. Great Western Ry. Co. 441, 445
Storey v. Johnson . . 479, 480
Stormont v. Wickens . . . 491
Story, j5e 518
V. Official Manager of Na-
tional Insurance Co. . . 26
Stott V. Storey . . .323
Stourton v. Stourton . . . 114
Stourbridge Canal Co. v. Dudley
(Earl of) . . ... 281
PAGE
Straford, iJe. . . 516,517,518
Straight v. Barn . , 272
Street, .iJe ... 519, 522
Stretton V. Great Westerp Railway
Co. . . . . .320
Strickland v. Strickland . 76, 83
Strike, Be . . .521
Stringer v. Harper . . 224
Strode v. Parlter . . . 374
Strong, Be . . ,. 132
V. Hawkes . . . 185
V. McGlasson . . .168
V. Strong ... 86
Strother, iJe . . . .521
Strutt V. Baker . . . .165
Stuart; Be . . . . 615
Sturoh V. Young . . . 378
Sturge V. Eastern Union Railway
Co. ' 318
V. North Eastern Union
Railway Co. .
V. Starr
. 325
. 468
Sturgis V. Champneys . 141, 142
St. Bartholomew's (Governors of),
Ex parte . . . . 584
St. David's Gold Mining Co., Be . 651
St. Helen's Smelting Co. v. Tipping 268;
273
St. John's Hospital, Cirencester, Be 526,
528
St. John V. St. John . , .442
St. Mary's College, Ex parte . 581
St. Mary Magdalen, Oxford, v. At-
torney-General . . . 243
St. Thomas's Hospital, v. Charing
Cross Hospital . . 315, 324
Suburban Hotel, Be . ' . 644
Suffolk (Earl of) v. Lewis . . 563
Sugden V. Odling . , . 197
Suggitt's Trusts, Be . . 143, 144
Suir Island Charity . . . 530
Sutton V. Doggett . . , 223
V, Rees .... 344
Swaine v. Great Northern Railway
Co. . ... , 280
Swaisland v. Dearsley . . 444
Swan's Case .... 680
Swan V. Webb . . . , 459
Swayne v. Swayne ^ . . 330
Sweet V. Benning . , . ,290
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liv
TABLE OV OASES.
Sweet V. Maugham
V. Meredith
—— V. Shaw .
Swift, Be
Sykes v. Hastings
Sympsoa v. Prothero
T.
PAGE
. 290
433, 451, 468
. 290
. 115
. 343
. 498, 503
625
325
422
284
307
32,34
Taddy, Be
Taft V. Harrison
Talbot V. Braddye
V. Ford .
V. La Roche
V. Marshfield
V. Shrewsbury (Earl of) 114,
115, 116
Tamworth (Lord) v. Ferrers
Tanfield v. Irvine
Tangye v. Stott
Tanner v. Dancey
Tapling v. Jones
Tardrew v. Howell
Tassell v. Smith
Tate V. Austin .
V. Leithead
Tatton' V. London and
Insurance Co
Taylor, Be (11 Sim. 178)
(18 Beav.)
; V. Beech
V. Brown
. V. Debar
V. Fields
V. Hughes
V. Manning
V. Eundell
V. Taylor
V. Taylor (_Ex
V, Wheeler
342.
258
345
. ' 306
. 223
. 272
. 503
. 396
. 402
79, 83
Lancashire
. 43
. 128
. 516
. 443
. 469
369, 440
. 407
. 325
. 163
. 32
. 136
parte Taylor) 618
. 369
Taylor's Estate, Be (L. E. 1 Bq.
495) 225
Taylor's Settled Estates, Be 619, 620
Taylor's Trusts, Be (L. E. 2 Ch.
536) 532
Teague, Be . . . .514
Teall V. Watts . . . 486, 487
Tebbitt v. Tebbitt . . .454
Teign Valley Railway Co., Be . 705
Telegraph Construction Co., Be 689, 693
Tempest v. Ord
. V, Tempest
Temple, Be
Tench v. Cheese
Teimant v. Storer
V. Trenchard
Thackeray v. Parker
Thackwray v. Parker
Thames Mutual Club Co., Be
Thelusson v. Woodford
Thetford School Case
Thicknesse v. Acton . . . 136
Thistlethwaite v. Grarnier . . 37
Thomas v. Buxton ... 79
V. Bering . . .440
V. Jones . . . 223
V. Oakley . . .259
V. Secretary of State for
India 34
Thompson, Be . . . . 521
,v.C]ive. . ' . .223
v. Hudson . . . 425
V. Planet Benefit Building
Society
V. Stanhope
• V. Symons
Thomson v. Plinn
V. Shakspear .
Thomdike v. Hunt .
Thomeycroft v. Crockett
Thornhill v. Thomhill
Thornton v. Court
V. Hunt
Thorold, Be
Thorpe v. Brumfitt
V. Holdsworth
V. Jackson
Thurgood, Be .
Thynn v. Duvall
Tibb's Trusts, Be
Ticbbome v. Tichborne
Tidd V. Lister .
Tidswell, Be .
Tilleard, Be .
Tilley v. Thomas
Times Life Assurance Co., Be
Timpson v. London
Western Railway Co,
Tindal o. Cobham
PAGE
348
241
596
329
76
399, 461
224, 484
. 356
. 651
338, 559
. 240
555
. 290
. 295
. 701
. 238
. 492
370, 371
122, 123, 348
374
482
625
280
387
175
515
162
634
105
138, 141, 397
. 552
. 524
465, 468
643, 647,
653
and North
. 80
. 448
Digitized by Microsoft®
TABLE OP CASES.
Iv
Tink V. Bundle
Tinsley v. Lacy
Tipping V. Clark
V. Eckersley .
V. Hawes
V. Power
V. St. Helen's Co.
Titley v. Davis
Tittenson v. Peat
Todd V. Bielby .
V. Dolman
FAOB
. 323
288, 292, 293
. 314
. 285
. 404
. 223
. 269
. 397
. 553
. 201
. 334
. 457
. 259
203, 214
. 153
ToUelt V. ToUett
Tollemache v. ToUemache
Tomes v. Eock .
Tomlin v. Tomlin
Tonson v. Walker . . . 290
Torre v. Torre .... 457
Tottenham and Hampstead Rail-
way Co, Be . . . . 585
Toulmin v. Eeid . . . 153
Tournay, Be . . . 591
Townsend (Marquis of) v. Stan-
groom ..... 444
Townsend's Settled Estates, Be . 620
Towsey v. Groves . . . 118
Tracy v. Lady Hereford . . 373
Trader's North Staffordshire Carry-
ing Co., Be . . . . 670
Trappes v. Barter . . 379
Trefusis v. Clinton . . . 465
Trezevant v. Boughton . . 79
Tritton v. Foote . . .441
TroUope v. Routledge . . 224
Trowbridge Water Supply, Be . 676
Trower and Lawson's Case, Be . 680
Trueman's Estate, Be . . 653
Trumnerv. Bayne . . . 217
Trustees of British Museum v.
White 239
Try t;. Try . . . .344
Tryon, Be . . . 510
Tubbs, 5e . . . .143
Tuck u. Silver . . . .252
Tucker v. Wilkins ... 87
V. Wilson . . .379
Tugwell V. Hooper ... 34
Tullett V. Armstrong . . . 146
Tullocli V. Tulloch . . .460
Tumacocori, Be . . . 643
Tunstall, i?e 612
Turner v. Burkinshaw
V. Evans
■ V. Harvey
V. Marriott .
V. Eeynoldscn
V. Sowdon
V. Turner
V. Wright
Turpin v. Chambers .
Turquand v. Kirby .
Tweeddale v. Tweeddale
Tweedy, Be
Twiss V. Massey
Twogood, Ex parte .
Twynam v. Porter
Tylee v. Tylee .
Tyler, Be
Tyrone (Earl of)
(Marquis of) .
u.
VAOE
. 157
. 282
. 468
435, 451
216, 225
5
. 20
255, 258, 259
. 452
. 666
. 396
. 616
. 175
. 155
499, 503
. 343
. 592
Waterford
. 38
Udny V. Udny .
. 221, 222
Underbill v. Horwood
. 163
Underwood, Be
. 596
V. Frost
. 340
United Ports and General Insur-
ance Co., Be . . 650, 678
United Service Co., Be . . 677
Unity Assurance Association, Be . 650
Universal Bank, Be . . 643, 677
Universal Disinfector Co., Be . 671
Universal Drug Association Co.,
Be 675
Universities of Oxford and Cam-
bridge V. Richardson . . 304
Upperton v. Niokolson . . 439
Upton and Wills' Case . 108
Vale V. Davenport
Vance v. East Lancashire Rally. Co,
Vancouver v. Bliss
Vane v. Lord Barnard
Vansittart v. Vansittart
Vaughan v. Vanderstegen .
Venner, iJe
Vernon v. Vawdry
470
324
440
258
442
146
618
154
Digitized by Microsoft®
Ivi
TABLE OP OASES.
PAGE
Vestris v. Hooper ... 91
Vestry of St. Mary Newington v.
Jacobs . . . .280
Vezey v. Jamsou . . 227, 237
Viall, Be . . . . 594, 615
Vibart v. Vibart ... 80
Victoria Benefit Building Society,
Re 425
Vidler v. Parrott . . .635
Viner v. Vaugban . . . 259
Vines and Hobbs, Be . .521, 522
Viney -y. Chaplin . . .444
Vint V. Padgett . . . 396
Vouillon u. Slater . . . 444
VuUiamy v. Noble . . . 155
w.
Waddilove v. Taylor .
Wade V. Oooper
Wadham v. Eigg
Wagstaff V. Kemp
Wainford v. Heyl
Wake V. Parker
V. Wake
Wakefield v. Buooleugh (Duke of)
Walburn v. Ingilby .
Walcot V. Walker
Waldo V. Caley ....
Waldron v. Francis .
Walker, Be
— ■ V. Brewster
■ V. Christian
V. Probisher
V. Shore . . . 115
V, Symonds . . . 154
V. Walker . . .443
V. Ware, Hadham, and
Buntingford Bailway Co. 408, 434, 451
V. Wildman ... 32
330, 374, 494
. 398
. 217
. 354
. 146
. 135
. 598
252
32
. 290
. 238
. 223
123, 513, 589, 591
. 278, 279
333
553
■ V. Woodward
Wall V. Rogers
■; V. Tomlinson
Wallace v. Pielden
Waller v. Holmes
Wallis V. Hodgson
V. Sarel .
■;;. Wallis
Walmisley v. Milne
Walsh V. Gladstone
152
137
142
412
498
213
465
92
379
244
Walsham v. Stainton. . . 34
Walsingham (Lord) v. Goodrick . 33
Walworth v. Holt . . '. 174
Wandsworth Board of Works v.
London and South Western Eail-
way Co. .... 267
Warburton v. Hill . . . 333
Ward, Ex parte . . 582
— ^ ,Be . . . .634
and Henry's Case . .661
V. Beck . . . .411
V. Buckingham (Duke of). 441
V. Davies . . . 332
V. Dean .... 552
V. Higgs . . . 254
V. Sittingboume Baily. Co. 683
V. Swift. . . 344, 494
V. Ward ... 92
■». Yates. . . 143,225
Warde v. Dixon . . . 452
■ — V. Warde ... 34
Warden of Dover Harbour v. South
Eastern Bailway Co. . .267
Warden, &c., of St. Paul's v. Morris 165
Ware v. Regent's Canal Co. . 268
Warlters, Be . . . .610
Warner, Ex parte . . . 386
and Powell, Be . . 551
Warran v. Buck . . . 135
Warren v. Postlethwaite . . 224
Warrender v. Poster . . . 608
Warwick Grammar School . . 245
Washoe Mining Co. v. Ferguson . 652
Waterfall v. Penistone . . 379
Waterfnrd v. Knight . . . 165
Waters v. Shaftesbury (Earl of) 33, 152
V. Taylor . . . 175
V. Waters . . .462
Watford Burial Board . 532, 541
Watmougb's Trusts . . .238
Watney v. Wells . 172, 176, 177
Watson V. Bennett . . . 551
V. Eales . . 325, 419
V. Hinsworth Hospital . 242
V. Lyon . . . 498
V. Korthumberland (Duke
of) 480
Watts V. Jefferyes . . . 332
V. Kelson . . . 280
('. Shrimpton . . . 141
Digitized by Microsoft®
TABLE OP CASES.
Ivii
Watts V. Symes
"Waugh V. Laud
"Wavell, Re
Wayn v. Lewis .
Wayne v. Hanliam
Way's Settlement, Se
Webb, Be
, Ex parte
V. De Beauvoisin
V. Manchester and
Bailway Co. .
V. Rose .
V. Wardle
V. WhifSn
WebVs Charity, Re
Webster v, Dillon
V. Le Hunt
FAOE
. 396
. 399
. 514
. 368
360, 367, 380
. 591
. 141
. 662
. 224
Leeds
315, 324
. 290
. 83
. 664
. 592
. 285
495, 497
. 662
145, 176
. 223
Webster's Case .
Wedderbum v. Wedderburn
Wedgwood v. Adams .
Weeding, iJe . . . .608
Weeks v. Howard . . . 268
Welch V. Knott . . .312
Welchman, Re . . . .143
Wellbeloved v. Jones . . . 244
Wellesley v. Beaiifort (Duke of) . 115
V. Mornington . 138, 330
— V. Wellesley . 115, 137, 138,
258, 607, 608
Wellington (Duke of), JEJx parte . 562
Wells, Re
V. Kilpin
V. Malbon
521, 524
390, 391, 697
. 138, 222
. 442
537, 538, 540
■ V. Maxwell
West Ham Charities
West Hartlepool Iron Works Co.,
Re ... . 642, 648
West Eetford Church Lands . 530
West Surrey Tanning Co., Re
642, 643, 644
West V. Francis . . .295
V, Iiaing . . . 217
V. Shuttleworth ■ . .238
v. Skip . . . .407
Western Benefit Building Society, Re
651
Western of Canada Oil Co., Re
641, 672, 673
V. Walker . . .652
Western v. Russell . . .448
Westfaling v. Westfaling
Westmeath v. Westmeath
Westminster (Dean and Chapter
of), Mx parte
Westminster and Brymbro Col-
liery Co. V. Clayton
Westmore v: Bmberley
Weston V. Collins
Wetenhall v. Davis .
Whaley v. Dawson .
Whalley, Ex parte .
, Re .
V. Whalley
Wharam v. Broughton
Whatton v. Cradock .
Wheatley v. Bastow .
Wheeler, Re
Whetstone v. Dewis .
Whicker v. Hume
Whitaker v. Newman
V. Wright
Whitchurch v. Bevis .
White V. Cohen
V. Damon
V. Herrick
■ V. Peterborough (Bishop of) 340
V. White
Whitehead v. Lynes .
V. Whitehead
Whitehouse v. Partridge
Whitelegg v. Whitelegg
Whiteley, Re .
Whitfield, Re .
V. Bewit
V. Roberts
Whiting, Re .
Whitmarsh v. Robertson
Whitmore v. Oxburrow
Whittaker v-. Howe
Whitton, Re .
Whyte V. O'Brien
Wickham v. Nicholson
Wicks- u. Hunt .
Wigan Glebe Act
Wigham v. Measor
Wilcox V. Marshall
Wilde V. Gibson
Wilding V. Andrews
V. Bolder
Wiley V. Crawford
PAGE
217
442
.583
. 32
. 358
. 449
. 224
. 479
. 527
. 576
. 494
. 108
. 373
492, 493
. 615
. 12
221, 239
. 213
. 217
. 443
85, 279
. 448
. 123
161, 162, 239
. 97
. 220
333, 334
. 257
. 620
. 580
. 259
368, 374, 499
591, 592
. 222
' . 91
283, 285, 286
587, 592
. 155
. 368
. 254
. 580
. 368
. 452
. 468
. 465
. 613
. 411
Digitized by Microsoft®
Iviii
TABLE OP CASES.
Wilkes V. Groom
Wilkinson's Case
Wilkinson's Trusts, Re
Wilkinson, Ex parte ,
-, Be .
V. Barber
— — — V. Charlesworth
V. Hartley
V. Henderson .
V. Lindgren .
V. Nelson
Willan, He' .
Willett V. Blandford .
Williams v. Attenborough
■ V. Cook
V. Games
V. Glentou
V. Hockin
V. Kershaw
V. Lake
V. Llanelly Railway
V. Piggot
■ V. Powell
PAGE
. 596
. 662
. 695
575, 582
124, 597, 620
. 237
. 90
. 439
. 175
. 224
. 457
. 616
. 176
. 465
. 79
483, 486
. 465
. 493
226, 237
. 442
81
403
155
Co.
• V. Prince of WalesLife,&c., Co. 53
V. Rowland
V. Williams .
William's Estate, Be .
Williamson v. Gordon
ii. Jeffreys
Willis V. Hunt .
Willmer v. Kidd
Willougbby v. Willoughby
Wills, Be
V. Bourne
Willshire's Estate
Wilson, Be
— (Sir Thomas) Estate.
V. Brownswiok
V. Fielding
V. Purness Railway
V. Greenwood .
V. Harman
V. Heaton
V. Metcalf
V. Northampton and
bury Junction Railway Co,
■ V. Round
■ V. Squire
; V. Whately
V. Williams
. 26
285, 314
. 608
118, 119, 401
79
. 153
344, 347
. 393
. 615
. 240
. 216
. 143
575
224
217
445
Be
Co.
168, 461
160, 373
. 224
364, 375
Ban-
. 446
. 502
. 224
37,80
. 448
Wilson V. Wilson
Wilton V. Hill .
Wiltshire iron Co.,
V. Jones
Be
FAQ£
81, 343, 411, 442
135, 137
. 678
. 454
. 694
. 123
Whitway, Be .
Winch V. James
Winchester (Bishop of) v. Beaver
401
«. Knight . . 164,259
V. Mid Hants Railway Co.
408, 434, 451
Windsor, Dean and Canons of , 240
Wing V. Tottenham Railway Co. 408,451
Winscom, Be , . . . 128
Winter v. Anson (Lord) . . 407
Winterbottom, Be . . 513, 514
Wintle V. Bristol and South Wales
Railway Co 324
Winton v. Newland . . . 488
Wise, Be 616
Wiseman, Be . . . . 615
Withy V. Cottle . . .441
Wolverhampton, &c.. Railway Co.
V. London and North Western
Railway Co. .
Wood, Be
V. Beetlestone
V. Boosey
V. Chart
V. Downes
V. Griffith
V. Machin
V. Scarth
V. Scoles
Woodcock's Trusts ,
Woodford «. Brooking
Wood gate v. Field
Woods, Be
Woodward v. Conebear
Woollan V. Hearne
Wooldridge v. Noi'ris .
V. Ryde and Newport Rail-
way Co. . . . ,
Wootton's Settlement, Be
Worcester Charities, Be
Wordsworth v. Darrell
V. Parkins
. 324
. 581
. 606
. 293
291, 293
. 403
. 447
439, 469
. 444
172, 175, 177
. 618
. 369
153, 180, 214
. 591
. 136
. 444
. 163
Worrall v. Harford .
Wortham v. Pemberton
Worthing Sea House Hotel, Be
. 317
577, 583
. 543
. 203
. 81
. 497
. 141
. 649
Digitized by Microsoft®
TABLE OF CASES.
lix
Wotherspoon v. Currie
Wotterbeck v. Barrow
Wragg V. Denham
Wren v. Kirton
Wright, Be
, Ux parte
V. Chard
V. Deeling
V. Goff
V. Howard
V. King
V, Mayer
V. Morley
V. St. George
V. Vernon
Wright's Case' .
Wrottesley v. Bendish
WroUt V. Dawes
Wyatt V. Barnard
Wycombe Eailway Co.
nington Hospital
Wyllie V. Lugg .
PAOK
310, 311, 312
. 457
363, 370, 371
. 465
. 590
386, 387
. 146
. 555
. 444
. 278
. 494
. 32
398, 420
. 442
. 342
664, 677
. 58
405, 407
. 290
Don-
. 450
. 399
, PAGE
Wynn v. Morgan . . 439, 449
Wynne v. Griffith . . .448
V. HumbertSon . . 34
V. Lord Newborough . 343
V. Price . . . 441
V. Styan . . 399, 420
Wythes v. Lee .... 451
Yates V. Hambly
V. Jack.
Yeomans v. Helvington
Yetts, Ee
Yong V. Bad ford
Yorkshire Fibre Co,
Youl, Be .
Young V. Brassey
V. Femie
V. Macrae
V. Smith
V. Young
164, 422, 425, 426
269, 272, 273
. 76
. 514
. 402
: 679
. 80
1
41, 300, 308
. 311
. 458
393, 483
Digitized by Microsoft®
Digitized by Microsoft®
TABLE OF ABBEEVIATIONS.
AbbieviatioDs.
Authorities cited.
Period.
Ad. & E.
or
A. &E.
Amb. .
Anstr.
Atk. .
Ball & B.
or
B. &B. y
B. & Ad.
B. & Aid.
B. &0.
Beat. .
Beav. .
Bing. .
Bl. Com.
BU. .
Braith. Pr.
'Bro. C. C.
or
Bro. Rep.
Buckley
Gas. t. Tal.
Ch. Rep.
Ch. Oases
Ch. Funds Rule
Ch. Funds Ord.
Chitty's Archb.
CI. & F. .
I Ooke Lit. .
OoIL .
Cons. Ord. .
Coop. C. P. .
Coop. G. .
Coote, Mort.
Cox .
Adolpbus and Ellis' Reports
Do. New Series
Ambler's Reports .
Anstrnther's Reports
Atkyn's Reports . .
Ball and Beatty's Reports
Barnewall and Adolphus
Barnewall and Alderson
Barnewall and Cresswell
Beatty (temp. Hart)
Beavan's Reports .
{Bingham
Do. New Cases
Blackstone's Commentaries.
Bligh ....
Braithwaite's Practice.
Brown's Reports of Cases in Chancery
Buckley on the Companies Acts (1862 and 1867).
Cases in time of Lord Chancellor Talbot .
Chancery Reports .....
Cases in Chancery .....
Chancery Funds Rules, 1874 ....
Chancery Funds (Amended) Orders, 1874
Chitty's Archbold's Practice.
Clarke and Finelly's Reports (H. L.) . .
Coke on Littleton. >
OoUyer's Chancery Reports ....
Consolidated Orders of the Court of Chancery .
(Cooper, C. P., Reports
I Do. Chancery Reports ....
Cooper, G., Reports
Coote on Mortgages.
Cox's Reports . .
1834—1841
1841—1846
.1739—1783
1791—1796
1736—1754
1807—1814
,1830—1834
1818—1822
1823—1830
1827--: 1829
1838—1866
J.822— 1834
1834—1840
1819—1821
1778-.r-1794
1733—1737
1689—1801
1660—1678
1874
1874
1831—1846
1844—1846
1860
1837—1838
1846—1847
1815
1783—1796
Digitized by Microsoft®
Ixii
TABLE OF ABBREVIATIONS.
Abbreviations.
Cr. & P. .
or
C. & P.
Dan. (5tli ed.)
Dart .
De G. & S. .
De G. M. & G.
De G. & J. .
De G. P. & J.
De G. J. & S.
Dick .
Dowl. .
Dr.&Sm. .
Dr. & W. .
or
Dr. & War, .
Drew. .
or
Dr. .
Dru. .
E. & B.
E. & E.
East .
Eden .
Bq. C.Ab. .
Ex. .
Fisher.
Fonblanque .
Giff. .
Gilb. For. Eom.
Hare .
H. & 0. .
H. & M. .
H. & N. .
H. & T. .
Hob. .
H. L. C. .
h. Ch. Rep. .
Jac. .
Jac. &W. .
Authorities cited.
Period.
Craig and Phillips ....
Daniel's Chancery Practice.
Dart on Vendors and Purchasers (4th Edition).
De Gex and Smale
De Gex, Macnaghten, and Gordon
De Gex and Jones
De Gex, Fisher, and Jones
De Gex, Jones, and Smith
Dickens' Reports .
iDowling's Practice Reports
I Do. (New Series) .
Drewry and Smale
Drury and Warren
Drewry's Chancery Reports
Drury's Reports (temp. Sugden)
Ellis and Blackburn (Q. B. Reports)
Ellis and Ellis (Do.)
East's Reports
Eden's (Lord Henley) Reports
( Equity Cases Abridged .
\ Do. (Anon.) .
Exchequer Reports
Fisher on Mortgages (Second Edition, 1868).
Fonblanque's Treatise on Equity.
Giffard's Reports ....
Gilbert's Forum Eomanum.
Hare's Reports - . . .
Hurlstone and Coltman (Exchequer Reports)
Hemming and Miller
Hurlstone and Norman (Exchequer Reports)
Hall and Twell's Reports
Hobart, Sir H. . . _ ' " .
House of Lords' Cases ..."
Irish Chancery Reports .
Jacob's Reports
Jacob's and Walker's Reports ..."
1840—1841
1846—1850
1851—1857
1857—1859
1859—1861
1862—1865
1559^1792
1830—1841
1841^1843
1859—1865
1841—1843
1852—1857
1843
1852—1858
1858—1861
1801—1814
1757—1766
1769—1793
1732
1847—1857
1858—1864
1841-
1862-
1862-
1856-
1849-
1613-
1847-
-1853
-1865
-1865
-1861
-1850
-1644
-1866
1850—1854
1821—1822
1819-^1821
Digitized by Microsoft®
TABLE OF ABBREVIATIONS.
Ixiii
Abbreviations.
AutboritieB cited.
Period.
J. &L. . .\
or [
Jones and Latouohe's Reports {temp. Sugden) .
1844^1846
J. &Lat. . .)
Job. Hep.
Johnson's Reports
1858—1860
Jud. Eules .
Judicature Rules
1875
Jur. .
Jurist ........
■1837—1854
Jur. (N. S.).
Jurist, New Series .....
1855—1866
Kay .
Kay's Reports
1853—1854
K. & J.
Kay and Johnson . . . .
1854—1858
Keen .
Keen's Reports
1836-1839
Keir .
Kerr on Injunctions (1867).
L. J. (Oh.) .
Law Journal Reports in Ohancery .
Do. (New Series) ....
1822—1831
1831—1857
L. T. .
Law Times .......
1843—1857
L. R. Oh. .
Law Reports (Cbancery Appeals)
1865—1875
L. R. Eq. .
Law Reports (Equity Series) .
1865—1875
L. R. Oh. D.
Law Reports (Ohancery Division) .
1 Jan. 1876
L. R. H. L.
Law Reports (House of Lords)
1865—1875
L.R. P.O. .
1865—1875
L. E. Q. B. .
Law Reports (Queen's Bench).
1865—1875
LI. & Goo. . . )
or /
Lloyd and Gould's Reports (temp. Plunkett)
1834--1836
Lloyd & Gold. . J
Do. (temp. Sugden;
1845
M.&G. .
or
Macnaghten and Gordon's Reports .
1849—1852
Macn. & G. .
Macq.
Macqueen's Reports (Scotch Appeals)
1851—1854
Madd.
Haddock's Reports
1815—1821
Mer. .
Merivale's Reports
1815—1817
M. & 0.
or
Mylne and Oraig's Reports ....
1835—1841
Myl. & 0. .
Myl. &K. .
Mylne and Keen's Reports ....
1832—1834
M. & W. .
Meeson and Welsby .....
1836—1847
Morg. .
Morgan's Chancery Practice.
MoU. .
Molloy's Irish Reports (temp. Hart)
1827—1828
Moo. P. 0. .
Moore, B. P., Privy Oouncil Appeals
1836—1855
Mos. .
Mosley's Reports (temp. King)
1726—1730
M. D. & De G. .
Montague, Deacon, and De Gex
1840-1844
N. R.
New, Reports ......
,1862—1865
Ph. . . .j
or [
Phillips' Chancery Reports ....
1841—1849
Phil. . . .)
Digitized by Microsoft®
Ixiv
TABLE OF ABBREVIATIONS.
Abbreviations.
P. Wms. .
Prec. Oh. .
Powell on Mort.
Lord Red.
Roper .
Russ. & M.
Russ. .
S. 0. .
s. &s.
or
Sim. & S.
Sim. .
Sw. .
Sch. & Lef.
Sel. Oh. Ca.
Seton .
Sm. & G.
Story .
Sugd. V. & P.
Taunt.
T. & R.
Tud. .
Vern. .
Ves. Sen.
or
Ves. .
Ves. Junr.
V. &B.
"Web. Pat. Cas.
W.N.
W. R.
White
Wms. Esors.
Woodfall .
T. & 0.
or
Y. &C0II. .
Y, & J.
Authorities cited.
Peere William's Reports
Precedents in Chancery.
I'owell on Mortgages.
Lord Redesdale (Mitford) on Pleadings.
Roper on Husband and Wife.
Russell and Mylne's Reports .
Russell's Reports .....
Same case.
Simons and Stuart ....
J Simon's Reports .....
( Do. (New Series) .
Swanston's Reports ....
Schoales and Lefroy (Irish Chanceiy)
Select Cases, Anon. (Chancery, temp. King)
Seton on Decrees (Third Edition) .
Smale and Giffard ....
Story on Equity Jurisprudence.
Sugden's Vendors and Purchasers.
Taunton's Reports (Common Pleas) .
Turner and Russell's Reports
Tudor's Charitable Trusts.
Vernon's Reports .
Vesey, Senior's, Reports (temp.
Vesey, Junior's, Reports
Vesey and Beames' Reports
Hardwicke)
Webster's Patent Cases.
Weekly Notes
Weekly Reporter .
White and Tudor's Leading Cases in Equity
Williams on Executors.
Woodfall on Landlord and Tenant.
Younge and Collier's (.Exchequer— Equity)
Do. (Chancery Cases) .
Younge and Jervis (Exchequer — Equity) .
Period.
1695—1735
1829—1831
1823—1828
1820—1826
1826—1850
1850-1852
1818—1819
1802—1806
1724—1733
1862
1852—1857
1807—1819
1822—1824:
1680—1719
1746—1755
1755—1817
1812—1814
1869—1875
1852—1875
1849—1850
1834—1840
1841—1844
1827—1830
Digitized by Microsoft®
DECEEES AND OEDEES.
CHAPTEE I.
WEIT OF SUMMONS— APPEAEANCE.
Summons, Eoem of.
" EvEET action in the High Court shall be commenced by writ of summons,
which shall be indorsed with a statement of the nature of the claim made, or of
the relief or remedy required in the action, and which shall specify the Division
of the High Court to which it is intended that the action should be assigned " :
Jud. Eules, Order 2, rule 1.
" Any costs occasioned by the use of any more prolix or other forms of writs,
and of indorsements thereon, than the forms hereinafter prescribed, shall be borne
by the party using the same, unless the Court shall, otherwise direct": Jud-
Eules, Order 2, rule 2.
" The writ of summons for the coromencement of an action shall, except in the
cases in which any different form is hereinafter provided, be in the form No. 1 in
Part I. of Appendix (A ), with such variations as the circumstances may require " :
Jud. Eules, Order 2, rule 3.
" No writ of summons for service out of the jurisdiction, or of which notice is to
be given out of the jurisdiction, shall be issued without the leave of a Court or
judge": Jud. Eules, Order 2, rule 4. See 7mmg v. Brassey, L. E. 1 Ch. D. 277.
" A writ of sunmaons to be served out of the jurisaiction, or of which notice is
to be given out of the jurisdiction, shall be in Form No. 2, in Part I. of Appendix
(A.), with such variations as circumstances may require. Such notice shall
be in Form No. 3 in the same Part, with such variations as circumstances may
require " : Jud Eules, Order 2, rule 5.
InDOESEMENTS of Cl.AIlVT.
The indorsement of claim 'shall be made on every writ of sumyions before it is
issued": Jud Eules, Order 3, rule 1.
" In the indorsement required by Order 2, rule 1, it shall not be essential to set
forth the precise ground of complaint or the precise remedy or relief to which the
pit considers himself entitled. The pit may, by leave of the Court or judge,
amend such indorsement so as to extend it to any other cause of action or any
additional remedy or relief" : Jud Eules, Order 3, rule 2.
" The indorsement of claim may be to the effect of such of the forms in Part II.
of Appendix (A.) hereto as shall be applicable to the case ; or if none be found
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2 WRIT OP SUMMONS— APPEARANCE.
applicable, then such other similarly concise form as the nature of the case may
require " : Jud. Rules, Order 3, rule 3.
" If the pit sues or the deft or any of the defts is sued in a representative
character, the indorsement shall shew, in manner appearing by the statement in
Appendix (A.) hereto. Part II., sect. 8, or by any other statement to the like
effect, in what capacity the pit or deft sues or is sued " : Jud. Rules, Order 3,
rule 4.
" In Probate actions the indorsement shall shew whether the pit claims as
creditor, executor, administrator, residuary legatee, legatee, next of kin, heir-
at-law, devisee, or in any and what other character": Jud. Rules, Order 3,
rule 5.
In all actions where the pit seeks merely to recover a debt or liquidated
demand in money, the summons is to be specially indorsed in manner provided
by Order 3, rules 6 and 7.
" In all cases of ordinary account, as, for instance, in the case of a partnership,
or executorship, or ordinary trust account, where the pit in the first instance
desires to have an account taken, the writ of summons shall be indorsed with a
claim that such account be taken " : Jud. Rules, Order 3, rule 8.
Service of Writ of Summons.
" No service shall be required where the deft by his solicitor agrees to accept
service and enters an appearance " : Jud. Rules, Order 9, rule 1.
" When service is required the writ shall, wherever it is practicable, be served
in the manner in which personal service is now made ; but if it be made to appear
to the Court or to a judge that the pit is from any cause unable to effect prompt
personal service, the Court or judge may make such order for substituted service,
or for the substitution of notice for semce, as may seem just " : Jud. Rules,
Order 9, rule 2.
Service on Particular Defendants.
On Husband and Wife.
" When husband and wife are both defts to the action, service on the husband
shall be deemed good service on the wife ; but the Court or a judge may order
that the wife shall be served with or without service on the husband " : Jud.
Rules, Order 9, rule 3.
On Infant Defendants.
" When an infant is a deft to the action, service on his or her father or guar-
dian, or if none, then upon the person with whom the infant resides, or under
whose care he or she is, shall, unless the Court or judge otherwise orders, be
deemed good service on the infant ; provided that the Court or judge may order
that service made or to be made on the infant shall be deemed good service" :
Jud. Rules, Order 9, rule 4.
On Lunatics, or Persons of Unsound Mind, Defendants.
" When a lunatic, or person of unsound mind not so found by inquisition, is a
deft to the action, service on the committee of the lunatic, or on the person
with whom the person of unsound mind resides, or under whose care he or she is.
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WRIT OF SUMMONS— APPEARANCE. 3
shall, unless the Court or judge otherwise orders, be deemed good service on such
deft ■■' : Jud. Rules, Order 9, rule 5.
On Partners and other Bodies.
" Where partners are sued in the name of their firm, the writ shall be served
either upon any one or more of the partners, or at the principal place within the
jurisdiction of the business of the partnership, upon any person having at the
time of service the control or management of the partnership business there ; and,
subject to the rules hereinafter contained, such service shall be deemed good
service upon the firm " : Jud. Rules, Order 9, rule 6.
On Corporation, Hundred, &e.
" Whenever by any statute provision is made for service of any writ of summons,
bill, petition, or other process upon any corporation, or upon any hundred, or the
inhabitants of any place, or any society, or fellowship, or any body or number of
persons, whether corporate or otherwise, every writ of summons may be served in
the 'manner so provided": Jud. Rules, Order 9, rule 7.
Service in Paeticular Actions.
For recovery of Land.
" Service of a vprit of summons in an action to recover land may, in case of
vacant possession, when it cannot otherwise be effected, be made by posting a copy
of the writ upon the door of the dwelling-house or other conspicuous part of the
property " : Jud. Rules, Order 9, rule 8.
As to service of writ in Admiralty actions in rem, see Jud. Rules, Order 9,
rules 9, 10, 11, and 12 ; and the Rules of December, 1875.
Memorandum of Service.
" The person serving .a writ of summons shall within three days at most after
such service indorse on the writ the day of the month and week of the service
thereof, otherwise the pit shall not be at liberty, in case of non-appearance, to
proceed by default ; and every affidavit of service of such writ shall mention the
day on which such indorsement was made " : Jud. Rules, Order 9, rule 13.
Substituted Service of Writ.
Upon motion, Ac, and upon reading an affidavit of, &c. [shewing
grounds of application']. Let service of the Pit's summons in this
action, together with a copy of this order on — [name and description'],
he deemed good service on the Deft B.
" If it be made to appear to the Court or to a judge that the pit is from any
cause unable to effect prompt personal service, the Court or a judge toay make
such order for substituted or other service, or for the substitution of notice for
service, as may seem just " : Jud. Rules, Order 9, rule 2.
" Every application to the Court or a judge, under Order 9, rule 2,, for an order
for substituted service, or for the substitution of notice for service, shall be sup-
B 2
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4 WRIT OF SUMMONS— APPEARANCE.
ported by an affidavit setting forth the grounds upon which the application is
made ": Jud. Rules, Order 10.
Under the former practice substituted service of the bill was effected under the
provisions of the 15 & 16 Vict. o. 86, s. 5, and Cons. Ord. 10, rule 2.
Where there is an agent in this country managing all the affairs of a deft who
is abroad, and regularly communicating with him upon his affairs, or where he
has an agent here specially managing the particular matter involved in the suit,
the Court has ordered substituted service upon that agent : Eope v. Hope, 4 De G.
M. & G. 328.
And substituted service has been allowed upon stewards and agents acting in
respect of property the subject of the suit where the agency has been proved :
Edbhouse v. Gmrtney, 12 Sim. 140, 157 ; 6 Jur. 28 ; Cooper v. Wood, 5 Beav.
391 ; Banhier v. Poole, 3 De G. & Sm. 375.
But the agency must be shewn : Cope v. Eussell, 11 Jur. 463 ; Bower v, Angier,
18 Jur. 1050 ; Hurst v. Burst, 1 De G. & Sm. 694; 12 Jur. 152.
•Substituted service has been ordered on a solicitor acting under a power of
attorney : Barker v. Peeh, 11 W. R. 658.
And upon persons who had acted as solicitors of the absent deft, and who were
in communication with him : Eeald v. Hay, 9 W. R. 369 ; Bornhy v. Holmes,
4 Hare, 306 ; 9 Jur. 225 ; Hope v. Carnegie, L. E. 1 Eq. 126.
So,,too, upon a person with whom the absent deft was in communication :
Bickson V. Clarke, 9 Jur. (N.S.) 636 ; 11 W. E.
Where the deft had absconded, the order for substituted service had been
extended to the service of all future proceedings : Forster v. Menzies, 16 Beav.
568 ; 17 Jur. 657 ; CWristie v. Cameron, 3 W. R. 146. See contra. Steel v.
Gordon, 3 W. R. 158.
The order directing substituted service must have been served at the same time
with the bill, and it must have been stated in the order that it was to be served :
Jones V. Brandon, 2 Jur. (N.S.) 437.
Service of Concurrent Writ out of Jurisdiction.
Upon motion, &o., hj counsel for — , and upon reading an affidavit
of — , "whereby it appears that, &c. [shewinff that case comes within
Order 11, rule 1, infra'] that the Deft A. is at — [or, probably may
be found at — ], out of the jurisdiction of this Court, Let the Pit be
at liberty to issue a concurrent writ of summons in this action against
the Deft A., and to "serve a copy of such writ, together with a copy
of this order, upon the said Deft A. at — aforesaid, or elsewhere in — .
And the time within which the said Deft is to appear to the said
summons is to be — days after such service.
Sekvice out of Jurisdiction — When allowed — Evidence.
"Service out of the jurisdiction of a writ of summons, or notice of a writ of
summons," may be allowed by the Court or judge whenever the whole or any part
of the subject matter of the action is land or stock, or other property situate within
the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or pro-
perty, and whenever the contract which is sought to be enforced or rescinded
dissolved, annulled, oi- otherwise affected in any such action, or for the breach
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WEIT OP SUMMONS— APPEARANCE. 5
whereof damages or other relief are or is demanded in such action, was made or
entered into witliin the jurisdiction ; and whenever there has been a breach within
the jurisdiction of any contract, wherever made, and whenever any act or thiAg
sought to be restrained or removed, or for which damages are sought to be
recovered, was or is to be done or is situate within the jurisdiction ": Jud. Eules,
Order H, rule 1.
For cases of service of bill out of the jurisdiction under the former practice
(under 15 & 16 Vict. c. 86, s. 3, and Cons. Ord. 10, rule 7), see Coohney v. Beavan,
1 De G. J. & S. 365 ; Foley v. Maiflardet, 1 De G. J. & S. 396 ; Norris v. Oot-
terill, 5 N. R. ; Drummond v. Brummond, L. B. 2 Bq. 335 ; L. R. 2 Ch. 32.
Leave might have been given to serve the bill upon infants and persons of
unsound mind out of the jurisdiction : Anderson v. Slather, 10 Jur. 383 ; Turner
V. Sowdon, 12 W. R. 522; 13 W. R. 66; 10 Jur.(N.S.) 1122.
And a husband out of the jurisdiction might have been served for himself and
his wife : Dan. 5th ed. 377 ; Jones v. Oeddis, 9 Jur. 1002 ; Steele v. Plomes
2 Phil. 782, n. ; 1 Mac. & G. 83.
" In Probate actions service of a writ of summons, or notice of a writ of sum-
mons, may by leave of the Court or judge be allowed out of the jurisdiction ":
Jud. Rules, Order 11, rule 2.
" Every application for an order for leave to serve such writ or notice on a deft
out of the jurisdiction shall be supported by evidence, by affidavit or otherwise,
shewing in what place or country such deft is or probably may be found, and
whether such deft is a British subject or not, and the grounds upon which the
application is made": Jud. Rules, Order 11, rule 3.
Under the former practice an affidavit of merits was not expressly required :
Blenkinsop v. Blenkinsop, 2 Phil. 1. But in most cases an affidavit was required
shewing the present residence of the deft : Freske v. Buller, 7 Beav. 581.
Service out of Jueisdiction — Time foe Appearance^
" Any order giving leave to effect such«service or give such notice, shall limit a
time after such service or notice within which such deft is to enter an appearance,
such time to depend on the place or country where or within which the writ is to
be served or the notice given " : Jud. Eules, Order 11, rule 4.
" Notice in lieu of service shall be given in tbe manner in which writs of
summons are served " : Jud. Rules, Order 11, rule 5. ^
The times, under the former practice, were fixed by the registrar. Usually
twice the time it ordinarily took to reach the deft's residence was allowed for
appearing, and^twioe that time for answering : Chatfield v. Berchtoldt, 9 Hare,
App. 28.
The service need not be limited to any particular spot, and leave has been
given, under the former practice, to serve " in Scotland," and " in the Grand
Duchy of Baden " : Morgan, 426 ; Blenkinsop v, BlenJeinsop, 2 Ph. 1 ; Preston
V. Dickinson, 9 Jur. 919.
Appearahce.
" Except in the cases otherwise provided for by these rules a deft shall enter
his appearance in London" : Jud. Eules, Order 12, rule 1.
" If any deft to a writ issued in a district registry reside or carries on business
within the district he shall appear in the district registry " : Jud. Rules, Order 12,
rule 2.
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6 WRIT OF SUMMONS— APP'BABANOE.
"If any deft neither resides nor carries on business iu the district he may-
appear either in the district registry or in London": Jud. Bules, Order 12,
rule 3.
" If a sole deft appears, or all the defts appear in the district registry, or if all
the defts who appear appear in the district registry, and the others make default
in appearance, then, subject to the power of removal hereinafter provided, the
action shall proceed in the district registry " : Jud. Rules, Order 12, rule 4.
" If the deft appears, or any of the defts appear, in London, the action shall
proceed in London, provided that if the Court or a judge shall be satisfied that
the deft appearing in London is merely a formal deft, or has no substantial cause
to interfere in the conduct of the action, such Court or judge may order that the
action may proceed in the district registry notwithstanding such appearance in
London " : Jud. Eules, Order, 12, rule 5.
As to mode of entering appearance, see Order 12, rules 6, 6 (a), 7, and 8.
Appeaeance set aside.
If the memorandum of appearance required by rules 6, 7, and 8 of Order 12
does not contain the address, and address for service required by those rules,
the memorandum is not to be received ; and if any such address shall be iUusory
or fictitious, the appearance may be set aside by the Court or a judge on the
application of the pit : see Order 12, rule 9.
" A solicitor not entering an appearance in pursuance of his written under-
taking so to do on behalf of any deft shall be liable to an attachment " : Jud.
Rules, Order 12, rule 14.
Time foe Appeaeance — Notice.
"A deft may appear at any time before judgment. If he appear at any time
after the time limited for appearance, he shall on the same day give notice thereof
to the pit's solicitor, or to the pit himself, if he sues in person, and he shall
not, unless the Court or judge otherwise order, be entitled to any further time for
filing and delivering his defence, or for any other purpose, than if he had appeared
according to the writ " : Jud. Rules, Order 12, rule 15.
In Probate actions and Admiralty actions in rem, persons not named in the
writ may intervene and appear on filing an affidavit as provided by Order 12,
rules 16 and 17.
" Any person not named as a deft in a writ of summons for the recevery of
land may, by leave of the Court or judge, appear and defend on filing an
affidavit shewing that he is in possession of the land either by himself or his
tenant " : Jud. Rules, Order 12, rule 18.
Notice of such appearance must be given to the pit or his solicitor : see Jud.
Rules, Order 12, rule 20. And the defence of such person may be lunited to a
part only of the property mentioned in the writ : Jud. Rules, Order 12, rule 21.
Default of Appearance — Infant— Person of Unsound Mind.
" Where no appearance has been entered to a writ of summons for a deft who
is an infant or a person of unsound mind not so found by inquisition, the pit
may apply to the Court or a judge for an order that some proper person be
assigned guardian of such deft, by whom he may appear and defend the suit.
But no such order shall be made unless it appears on the hearing of such appli-
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WEIT OP SUMMONS— APPBAEANCE. 7
cation that a copy of the writ of summons was duly served, and that notice of
such application was after the expiration of the time allowed for appearance, and
at least six clear days before the day in such notice named for hearing the appli-
cation, served upon or left at the dwelling-house of the person with whom or
under whose care such deft was at the time of serving such writ of summons, and
also (in the case of such deft heing an infant, not residing with or under the
care of his father or guardian) served upon or left at the dwelling-house of the
father or guardian, if any, of such infant, unless the Court or judge at the time of
hearing such application shall dispense with such last-mentioned service " : Jud.
Rules, Order 13, rule 1.
" Where any deft fails to appear to a writ of summons, and the pit is desirous
of proceeding upon default of appearance under any of the following rules of this
Order, or under Order 15, rule 1, he shall before taking such proceeding upon
default, file an affidavit of service, or of notice in lieu of service, as the case may
be " : Jud. Eules, Order 13, rule 2.
In case of non-appearance by defts where the writ of summons is specially
indorsed under Order 3, rule 6, final judgment may be signed, see Order 13,
rules 3 and 4 ; and in cases of non-appearance by the deft to a writ not specially
indorsed, where the claim is for a debt or liquidated demand only, see Order 13,
rule 5. In case of non-appearance by the deft where the claim is for detention
of goods and pecuniary damages, or either of them, see Order 13, rule 6. In case
of non-appearance in an action for the recovery of land, see Order 13, rules 7 and 8.
" In actions assigned by the 34th section of the Act to the Chancery Division,
and in Probate actions, and in all other actions not by the rules in this Order
otherwise specially provided for, in case the party served with the writ does not
appear within the time limited for appearance, upon the filing by the pit of a
proper affidavit of service the action may proceed as if such party had appeared : "
Jud. Rules, Order 13, rule 9.
" In default of appearance to a summons indorsed under Order 3, rule 8
(ante, p. 2), and after appearance, unless the deft, by affidavit or otherwise,
satisfy the Court or a judge that there is some preliminary question to be tried,
an order for the account claimed, with all directions now usual in the Court of
Chancery in similar cases, shall be forthwith made " : Jud. Eules, Order 15,
rule 1.
" An application for such order as mentioned in the last preceding rule shall
be made by summons, and be supported by an affidavit filed on behalf of the
pit, stating concisely the grounds of his claim tcj an account. The application
may be made at any time after the time for entering an appearance has expired " :
Jud. Eules, Order 15, rule 2.
Payment into Court in Satisfaction.
" Where any action is brought to recover a debt or damages, any deft may, at
any time after service of the writ, and before or at the time of delivering his
defence, or by leave of the Court or judge at any later time, pay into Court a sum
of money by way of satisfaction or amends. Payment into Court shall be pleaded
in the defence, and th6 claim or cause of action in respect of which such payment
shall be made shall be specified therein " : Order 30, rule 1.
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CHAPTER II.
PAETIES, AND JOINDBK OF CAUSES OF ACTION.
Paeties.
The pit may enforce an equitaUe claim, and the deft may raise any equitable
defence in any Court. The deft may enforce by way of covmter-claim against the
pit any claim, legal or equitable, which he might have raised by a cross suit at
law or in equity. And the deft may obtain any relief relating to the original
subject of the action against any other person. See Judicature Act, 1873 (36 & 37
Vict. c. 66), s. 24, sub-sects. 1 to 7 inclusive.
Parties, who mat be joined.
" All persons may be joined as pits in whom the right to any relief claimed
is alleged to exist, whether jointly, severally, or in the alternative. And judg-
ment may be given for such one or more of the pits as may be found to be
entitled to relief, for such relief as he or they may be entitled to, without any
amendment. But the deft, though unsuccessful, shall be entitled to his costs
occasioned by so joining any person or persons who shall not be found entitled to
relief, unless the Court in disposing of the costs of the action shaU otherwise
direct " : Jud. Eules, Order 16, rule 1.
" Where an action has been commenced in the name of the wrong person as
pit, or where it is doubtful whether it has been commenced in the name of the
right pit or pits, the Court or a judge may, if satisfied that it has been so com-
menced through a hond fide mistake, and that it is necessary for the determinar
tion of the real matter in dispute so to do, order any other person or persons to
be substituted or added as pit or pits upon such terms as may seem just " : Jud.
Eules, Order 16, rule 2.
" All persons may be joined as defts against whom the right to any relief
is alleged to exist, whether jointly, severally, or in the alternative. And judg-
ment may be given against such one or more of the defts as may bo found to be
liable, according to their respective liabilities, without any amendment " : Jud.
Rules, Order 16, rule 3.
" It shall not be necessary that every deft to any action shall be interested as
to all the [relief thereby prayed for, or as to every cause of action included
therein ; but the Court or a judge may make such order as may appear just
0 prevent any deft from being embarrassed or put to expense by being required
to attend any proceedings in such action in which he may have no interest":
Jud. Eules, Order 16, rule 4.
" The pit may, at his option, join as parties to the same action all or any of
the persons severally, or jointly and severally, liable on any one contract, includ-
ing parties to bills of exchange and promissory notes " : Jud. Rules, Order 16,
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PARTIES, AND JOINDER OF CAUSES OP ACTION. 9
" Where in any action, whether founded upon contract or otherwise, the pit
is in doubt as to the person from whom he is entitled to redress, he may, in such
manner as hereinafter mentioned, or as may be prescribed by any special order,
join two or more defts, to the intent that in such action the question as to
which, if any, of the defts is liable, and to what extent, may be determined as
between all parties to the action " : Jud. Rules, Order 16, rule 6.-
Trustees and Executors.
" Trustees, executors, and administrators may sue and be sued on behalf of or
as representing the property or estate of which they are trustees or representa-
tives, without joining any of the parties beneficially interested in the trust or
estate, and shall be considered as representing such parties in the action ; bat the
Court or a judge may, at any stage of the proceedings, order any of Such parties to
be made parties to the action, either in addition to or in lieu of the previously
existing parties thereto :" Jud. Rules, Order 16, rule 7.
Married Women and Infants.
" Married women and infants may respectively sue as pits by their next
friends, in the manner practised in the Court of Chancery before the passing of
this Act ; and infants may, in like manner, defend any action by their guardians
appointed for that purpose. Married women may also, by the leave of the Court
or a judge, sue or defend without their husbands and without a next friend, on
giving such security (if any) for costs as the Court or a judge may require " :
Jud. Rules, Order 16, rule 8.
" Where there are numerous parties having the same interest in one action, one
or more of such parties may sue or be sued, or may be authorized by the Court
to defend in such action, on behalf or for the benefit of all parties so interested" :
Jud. Rules, Order 16, rule 9.
" Any two or more persons claiming or being liable as co-partners may sue or
be sued in the name of their respective firms, if any ; and any party to an action
may in such case apply by summons to a judge for a statement of the names of
the persons who are co-partners in any such firm, to be furnished in such manner,
and verified on oath or otherwise, as the judge may direct" : Jud. Rules, Order 16,
rule 10.
" Subject to the provisions of the Act and these Rules the provisions as to
parties contained in section 42 of 15 & 16 Vict. c. 86, shall be in force as to
actions in the High Court of Justice " : Jud. Rules, Order 16, rule 11.
" Subject as last aforesaid, in all Probate actions the rules as to parties here-
tofore in use in the Court of Probate shall continue to be in force " : Jud. Rules,
Order 16, rule 12.
Misjoinder of Parties.
"No action shall be defeated by reason of the misjoinder of parties, and the
Court may in every action deal with the matter in controversy so far as regards
the rights and interests of the parties actually before it. The Court or a judge
may, at any stage of the proceedings, either upon or without the application of
either party, and on such terms as may appear to the Court or a judge to be
just, order that the name or names of any party or parties, whether as pits or as
defts, improperly joined be struck out, and that the name or names of any party
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io PARTIES, AND JOINDER OF CAUSES OF ACTION,
or parties, whether pits or defts, who ought to have been joined, or whose pre-
senco before the Court may be necessary in order to enable the Court effectually
p,nd completely to adjudicate upon and settle all the questions involved in the
action, be added. No person shall be added as a pit suing without a next friend,
or as the next friend of a pit under any disability, without his own consent
thereto. All parties whose names are so added as defendants shall be served
with a summons or notice in manner hereinafter mentioned, or in such manner
as may be prescribed by any special order, and the proceedings as against them
shall be deemed to have begun only on the service of such summons or notice " :
Jud. Rules, Order 16, rule 13.
"Any application to add or strike out or substitute a pit or deft may
be made to the Court or a judge at any time before trial by motion or summons,
or at the trial of the action in a summary manner": Jud. Rules, Order 16,
rule 14.
When Defendant added.
" Where a deft is added, unless otherwise ordered by the Court or judge,
the pit shall file an amended copy of and sue out a writ of summons, and serve
such new deft with such writ or notice in lieu of service thereof in the same
manner as original defts are served " : Jud. Rules, Order 16, rule 15.
" If a statement of claim has been delivered previously to such deft being
added, the same shall, unless otherwise ordered by the Court or judge, be
amended in such manner as the making such new deft a party shall render
desirable, and a copy of such amended statement of claim shall be delivered to
such new deft at the time when he is served with the writ of summons or notice
or afterwards, within four days after his appearance " : Jud. Rules, Order 16,
rule 16.
Defendant claiming CoNTRiBtmox oe Indemnity.
" Where a deft is or claims to be entitled to contribution or indemnity, or any
other remedy or relief over against any other person, or where from any other
cause it appears to the Court or a judge that a question in the action should be
determined not only as between the pit and deft, but as between the pit, deft,
and any other person, or between any or either of them, the Court or a judge
may, on notice being given to such last-mentioned person, make such order as
may be proper for having the question so determined " : Jud. Rules, Order 16,
rule 17.
" Where a deft claims to be entitled to contribution, indemnity, or other
remedy or relief over against any person not a party to the action, he may, by
leave of the Court or a judge, issue a notice to that effect, stamped with the seal
with which writs of summons are sealed. A copy of such notice shall be filed
with the proper ofBoer and served on such person according to the rules relating
to the service or writs of summons. The notice shall state the nature and
grounds of the claim, and shall, unless otherwise ordered by the Court or a
judge, be served within the time limited for delivering his statement of defence.
Such notice may be in the form or to the effect of the Form No. 1 in Appendix
(B), hereto with such variations as circumstances may require, and therewith
shall be served a copy of the statement of claim, or if there be no statement
of claim, then a copy of the writ of summons in the action " : Jud. Rules,
Order 16, rule 18. See IVeleven v. Bray, 1 Ch. D. 176.
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PARTIES, AND JOINDER OF CAUSES OF ACTION. 11
Questions in Action relating to Persons not Parties.
" When under Rule 17 of this Order it is made to appear to the Court or a
judge at any time before or at the trial that a question in the action should be
determined, not only as between the pit and deft, but as between the pit and the
deft and any other person, or between any or either of them, the Court or a
judge, before or at the time of making the order for having such question deter-
mined, shall direct such notice to be given by the pit at such time and to such
person and in such manner as may be thought proper, and if made at the trial
the judge may postpone such trial as he may think fit" : Jud. Rules, Order 16,
rule 19.
" If a person not a party to the action, who is served as mentioned in Rule 18,
desires to dispute the pit's claim in the action as against the deft on whose behalf
the notice has been given, he must enter an appearance in the action within eight
days from the service of the notice. In default of his so doing, he shall be
deemed to admit the validity of the judgment obtained against such deft,
whether obtained by consent or otherwise : Provided always, that a person so
served and failing to appear within the said period of eight days may apply
to the Court or a judge for leave to appear, and such leave may be given upon
such terms, if any, as the Court or a judge shall think fit ": Jud. Rules, Order 16,
rule 20.
" If a person not a party to the action served under these Rules appears pur-
suant to the notice, the party giving the notice may apply to the Court or a judge
for directions as to the mode of having the question in the action determined ; apd
the Court or judge, upon the hearing of such application, may, if it shall appear
desirable so to do, give the person so served liberty to defend the action upon
such terms as shall seem just, and may direct such pleadings to be delivered, or
suet amendments in any pleadings to be made, and generally may direct such
proceedings to be taken, and give such directions as to the Court or a judge shall
appear proper for having the question most conveniently determined, and as to
the mode and extent in or to which the person so served shall be bound or made
liable by the decision of the question " : Jud. Rules, Order 16, rule 21.
Joinder of Causes of Action.
" Subject to the following rules, the pit may unite in the same action and in
the same statement of claim several causes of action ; but if it appear to the
Court or a judge that any such causes of action cannot be conveniently tried or
disposed of together, the Court or judge may order separate trials of any of such
causes of action to be had, or may make such other order as may be necessary or
expedient for the separate disposal thereof" : Jud. Rules, Order 17, rule 1.
" No cause of action shall, unless by leave of the Court or a judge, be joined
with an action for the recovery of land, except claims in respect of mesne profits
or arrears of rent in respect of the premises claimed, or any part thereof, and
damages for breach of any contract under which the same or any part thereof are
held " : Jud. Rilles, Order 17, rule 2.
" Claims by a trustee in bankruptcy as such shall not, unless by leave of the
Court or a judge, be joined with any claim by him in any other capacity " :
Jud. Rules, Order 17, rule 3.
" Claims by or against husband and wife may be joined with claims by or
against either of them separately " : Jud. Rules, Order 17, rule 4.
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12 PARTIES, AND JOINDER OP CAUSES OP ACTION.
" Claims by or against an executor or administrator as such may be joined with
claims by or against him personally, provided the last-mentioned claims are-
alleged to arise with reference to the estate in respect of which the pit or deft
sues or is sued as executor or administrator " : Jud. Rules, Order 17, rule 5.
" Claims by pits jointly may be joined with claims by them or any of them
separately against the same deft " : Jud. Rules, Order 17, rule 6.
" The last three preceding rules shall be subject to rule 1 of this Order, and to
the rules hereinafter contained " : Jud. Rules, Order 17, rule 7.
"Any deft alleging that the pit has united in the same action several causes
of action which cannot be conveniently disposed of in one action, may at any
time apply to the Court or a judge for an order confining the action to such
of the causes of action as may be conveniently disposed of in one proceeding " :
Jud. Rules, Order 17, rule 8.
" If, on the hearing of such application as in the last preceding rule men-
tioned, it shall appear to the Court or a judge that the causes of action are such
as cannot all be conveniently disposed of iu one action, the Court or a judge may
order any of such causes of action to be excluded, and may direct the, statement
of claim, or, if no statement of claim has been delivered, the copy of the writ of
summons, and the indorsement of claim on the writ of summons, to be amended
accordingly, and may make such order as to costs as may be just " : Jud. Rules,
Order 17, rule 9.
Actions by and against Lunatics and Persons of unsound Mind.
" In all cases in which lunatics and persons of unsound mind not so found by
inquisition might respectively before the passing of the Act have sued as pits, or
would have been liable to be sued as defts in any action or suit, they may respec-
tively sue as pits in any action by their committee or next friend in manner prac-
tised in the Court of Chancery before the' passing of the said Act, and may in
hke manner defend any action by their committees or guardians appointed for
that purpose " : Jud. Rules, Order 18.
An action " to establish title to land " is an action " for the recovery of land,"
so as to require the leave of the Court under rule 2 for its joinder with another
cause of action : Whetstone v. Lewis, L. R. 1 Ch. D. 99.
And an action for the administration of personal estate may be joined with an
action to establish title to real estate where the pit claims both estates under a
common gift in the same will : S. C.
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CHAPTER ni.
PLEADINGS.
Pleading generally.
The word " pleading " includes any petition or summons, and includes the state-
ments in writing of the claim or demand of any pit, and of the defence of any
deft thereto, and of the reply of the pit to any counter-claim of a deft : Judicature
Act, 1873 (36 & 37 Vict. c. 66), s. 100.
" Unless the deft in an action at the time of his appearance shall state that he
does not require the delivery of a statement of complaint, the pit shall, within
such time and in such manner as hereinafter prescribed, deliver to the deft after
his appearance a statement of his complaint, and of the relief or remedy to which
he claims to be entitled. The deft shall within such time and in sneh manner as
hereinafter prescribed, deliver to the pit a statement of his defence, set-off, or
counter-claim (if any), and the pit shall in like manner deliver a statement of his
reply (if any) to such defence, set-off, or counter-claim. Such statements shall
be as brief as the nature of the case will admit, and the Court, in adjusting the
costs of the action, shall inquire at the instance of any p'aity into any unneces-
sary prolixity, and order the costs occasioned by such prolixity to be borne by the
party chargeable with the same" : J ad. Rules, Order 19, rule 2.
" A deft in an action may set off, or set up by way of counter-claim against the
claims of the pit, any right or claim, whether such set-o£F or counter-claim sound
in damages or not, and such set-off or counter-claim shall have the same effect
as a statement of claim, in a cross action, so as to enable the Court to pronounce a
final judgment in the same action, both on the original and on the cross-claim.
But the Court or a judge may, on the application of the pit before trial, if in
the opinion of the Court or judge such set-off or counter-claim cannot be conve-
niently disposed of in the pending action, or ought not be allowed, refuse permis-
sion to the Deft to avail himself thereof" : Jud. Rules, Order 19, rule 3.
"Every pleading shall contain as concisely as may be a statement of the
material facts on which the party pleading relies, but not the evidence by which,
they are to be proved, such statement being divided into paragraphs, numbered
consecutively, and each paragraph containing, as nearly as may be, a separate
allegation. Dates, sums, and numbers shall be expressed in figures and not in
words. Signature of counsel shall not be necessary." Forms similar to those in
Appendix (C) may be used : Jud. Rules, Order 19, rule 4.
" Every pleading which shall contain less than three folios of seventy- two words
each "(every figure being counted as one word) may be either printed or written,
or partly printed or partly written, and every other pleading, not being a petition
or summons, shall be printed " : Jud. Rules, Order 19, rule 5.
" Every pleading or other document required to be delivered to a party, or
between parties, shall be delivered in the manner now in use to the solicitor of
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u plbadiJtgs.
every party who appears by a solicitor, or to the party if he does not appear by a
solicitor, but if no appearance has been entered for any party, then such pleading'
or document shall be delivered by being filed with the proper oflSoer " : Jud. Rules,
Order 19, rule 6.
" Every pleading in an action 'shall be delivered between parties, and shall be
marked on the face with the date of the day on which it is delivered, and with
the reference to the letter and number of the action, the Division to which and
the judge (if any) to whom the action is assigned, the title of the action, the
description of the pleading, and the name and place of business of the solicitor
and agent, if any, delivering the same, or the name and address of the party
delivering the same if he does not act by a solicitor " : Jud. Kules, Order 19,
rule 7.
" Every statement of claim shall state specifically the relief which the pit
claims, either simply or in the alternative, and may also ask for general relief.
And the same rule shall apply to any counter-claim made or relief claimed by
the deft in his statement of defence. If the pit's claim be for discovery only
the statement of claim shall shew it " : Jud. Rules, Order 19, rule 8.
" Where the pit seeks relief in respect of several distinct claims or causes of
complaint founded upon separate and distinct facts, they shall be stated, as far
as may be, separately and distinctly. And the same rule shall apply where the
deft relies upon several distinct grounds of defence, set-ofi^, or counter-claim
founded upon separate and distinct facts " : Jud. Rules, Order 19, rule 9.
" Where any deft seeks to rely upon any facts as supporting a right of set-off
or counter-claim, he shall, in his statement of defence, state specifically that he
does so by way of set-off or counter-claim " : Jud. Rules, Order 19, rule 10.
" If either party wishes to deny the right of any other party to claim as
executor or as trustee, whether in bankruptcy or otherwise, or in any representa-
tive or other alleged capacity, or the alleged constitution of any partnership firm,
he shall deny the same specifically" : Jud. Rules, Order 19, rule 11.
" In Probate actions where the pit disputes the interest of the deft, he shall
allege In his statement of claim that he denies the deft's interest": Jui Rules,
Order 19, rule 12.
" No plea or defence shall be pleaded in abatement " : Jud. Rules, Order 19,
rule 13.
" No new assignment shall hereafter ibe necessary or used. But everything
which has heretofore been alleged by way of new assignment may hereafter be
Introduced by amendment of the statement of claim " : Jud. Rules, Order 19,
I'ule 14.
" No deft in an action for the recovery of land who is in possession by himself
or his tenant need plead his title, unless his defence depends on an equitable
estate or right or he claims relief upon any equitable ground against any right
or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned,
it shall be sufficient to state by way of defence that he is so in possession. And
he may nevertheless rely upon any ground of defence which he can prove, except
as hereinbefore mentioned " : Jud. Rules, Order 19, rule 15.
" Nothing in these rules contained shall affect the right of any deft to plead
not guilty by statute. And every defence of not guilty by statute shall have the
same effect as a plea of not guilty by statute has heretofore had. But if the
deft so plead he shall not plead any other defence without the leave of the Court
or a judge " : Jud. Rules, Order 19, rule 16.
" Every allegation of fact in any pleading in an action, not being a petition or
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PLEADINGS. 15
summons, if not denied speoiflcally or by necesaary implication, or stated to be
not admitted in tbe pleading of the opposite party, shall be taken to be admitted,
except as against an infant, lunatic, or person of unsound mind not so found by
inquisition": Jud. Rules, Order 19, rule 17.
" Each party in an-y pleading, not being a petition or summons, must allege all
such facts not appearing in the previous pleadings as he means to rely on, and
must raise all such grounds of defence or reply, as the case may be, as if not
raised on the pleadings would be likely to take the opposite party by surprise, or
would raise new issues of fact not arising out of the pleadings, as for instance,
fraud, or that any claim has been barred by the Statute of Limitations or has
been released " : Jud. Rules, Order 19, rule 18.
"No pleading, not being a petition or summons, shall, except by way of
amendment, raise any new ground of claim or contain any allegation of fact in-
consistent with the previous pleadings of the party pleading the same " : Jud.
Rules, Order 19, rule 19.
" It shall not be sufficient for a deft in his defence to deny generally the facts
alleged by the statement of claim, or for a pit in his reply to deny generally the
facts alleged in a defence by way of counter-claim, but each party must deal
specifically with each allegation of fact of which he does not admit the truth":
Jud. Rules, Order 19, rule 20.
" Subject to the last preceding rule, the pit by his reply may join issue upon
the defence, and each party in his pleading, if any, subsequent to reply, may join
issue upon the previous pleading. Such joinder of issue shall operate as a denial
of every material allegation of fact in the pleading upon which issue is joined, but
it may except any facts which the party may be willing to admit, and shall then
operate as a denial of the facts not so admitted " : Jud. Rules, Order 19, rule 21.
" When a party in any pleading denies an allegation of fact in the previous
pleading of the opposite party, he must not do so evasively, but answer the point
of substance. Thus, if it be alleged that he received a certain sum of money, it
shall not be sufBcient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof, or else set out how much
he received. And so when a matter of fact is alleged with divers circumstances,
it shall not be sufBcient to deny it as alleged along with those circumstances,
but a fair and substantial answer must be given " : Jud. Rules, Order 19, rule 22.
" When a contract is alleged in any pleading, a bare denial of the contract by
the opposite party shall be construed only as a denial of the making of the
contract in fact, and not of its legality or its sufficiency in law, whether with
reference to the Statute of Frauds or otherwise " : Jud. Rules, Order 19, rule 23.
" Wherever the contents of any document are material, it shall be sufficient in
any pleading to state the effect thereof as briefly as possible, without setting out
the whole or any part thereof unless the precise words of the document or any
part thereof are material " : Jud. Rules, Order 19, rule 24.
" Wherever it is material to allege malice, fraudulent intention, knowledge, or
other condition of the mind of any person, it shall he sufficient to allege the same
as a fact without setting out the circumstances from which the same is to be
inferred " : Jud. Rules, Order 19, rule 25.
" Wherever it is material to allege notice to any persion of any fact, matter, or
thin" it shall be sufficient to allege such notice as a fact, unless the form or the
precise terms of such notice be material " : Jud. Rules, Order 19, rule 26.
" Wherever any contract or any relation between any persons does not arise
from an express agreement, but is to be implied from a series of letters or conver-
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16 PLEADINGS.
sations, or otherwise from a number of circumstances, it shall be sufficient to
allege such contract or relation as a fact, and to refer generally to such letters,
conversations, or circumstances without setting them out in detail. And if in
such case the person so pleading desires to rely in the alternative upon more con-
tracts or relations than one as to be implied from such circumstances, he may
state the same in the alternative " : Jud. Rules, Order 19, rule 27.
"Neither party need in any pleading allege any matter of fact which the law
presumes in his favour or as to which the burden of proof lies upon the other
side, unless the same has first been specifically denied.
[E.g. —Consideration for a bill of exchange where the plaintiff sues only on
the bill, and not for the consideration as a substantive ground of claim] " : Jud.
Rules, Order 19, rule 28.
" Where an action proceeds in a district registry all pleadings and other docu-
ments required to be filed shall be filed in the district registry " : Jud. Rules,
Order 19, rule 29.
" In actions for damage by collision between vessels, unless the Court or a
judge shall otherwise order, each solicitor shall, before any pleading is delivered,
file v?ith the proper ofBcer a document to be called a Preliminary Act, which
shall be sealed up and shall not be opened until ordered by the Court or a judge,
and which shall contain a statement of the following particulars : —
(a.) The names of the vessels which came into collision and the names of their
masters.
(6.) The time of the collision.
(c.) The place of the collision.
((?.) The direction of the wind.
(e.) The state of the weather.
(/.) The state and force of the tide.
(51.) The course and speed of the vessel when the other was first seen.
(A.) The lights, if any, carried by her.
(».) The distance and bearing of the other vessel when first seen.
(&.) The lights, if any, of the other vessel which were first seen.
Q.) Whether any lights of the other vessel, other than those first seen, came
into view before the collision.
(ra.) What measures were taken, and when, to avoid the collision.
(ji.) The parts of each vessel which first came into contact.
" If both solicitors consent, the Court or a judge may order the preliminary acts
to be opened and the evidence to be taken thereon without its being necessary to
deliver any pleadings " : Jud. Rules, Order 19, rule 30.
Pleading Matters aeising pending the Action.
" Any ground of defence which has arisen after action brought, but before the
deft has delivered his statement of defence, and before the time limited for his
doing so has expired, may be pleaded by the deft in his statement of defence,
either alone or together with other grounds of defence. And if, after a statement
of dsfence has been delivered, any ground of defence arises to any set-off or
counter-claim alleged therein by the deft, it may be pleaded by the pit in his
reply, either alone or together with any other ground of reply " : Jud. Rules,
Order 20, rule 1.
" Where any ground of defence arises after the deft has delivered a statement
of defence, or after the time limited for his doing so has expired, the deft may.
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PLEADINGS. 17
and where any ground of defence to any set-off or counter-claim arises after reply,
or after the time limited for delivering a reply has expired, the pit may, within
eight days after such ground of defence has arisen, and by leave ot' the Oouit or a
judge, deliver a further defence or further reply, as the case may be, setting forth
the same " : Jud. Rules, Order 20, rule 2.
" Whenever any deft, in his statement of defence, or in any further statement
of defence as in the last rule mentioned, alleges any ground of defence which has
arisen after the commencement of the action, the pit may deliver a confession of
such defence, which confession may be in the Form No. 2 in Appendix (B.)" to
the Act, " with such variations as circumstances may require, and he may there-
upon sign judgment for his costs up to the time of the pleading of such defence,
unless the Court or a judge shall, either before or after the delivery of such con-
fession, otherwise order " : Jud. Rules, Order 20, rule 3.
Statement of Claim.
" Subject to rules 2 and 3 of this order, the delivery of statements of claim shall
be regulated as follows : —
(a.) If the deft shall not state that he does not require the delivery of a state-
ment of claim, the pit shall, unless otherwise ordered by the Court or a judge,
deliver it within six weeks from the time of the deft's entering his appearance.
(6.) The pit may, if he think fit, at any time after the issue of the writ of
summons, deliver a statement of claim with the writ of summons or notice in
lieu of writ of summons, or at any time afterwards, either before or after appear-
ance, and although the deft may have appeared and stated that he does not
require the delivery of a statement of claim : Provided that in no case where a
deft has appeared shall a statement be delivered more than six weeks after the
appearance has been entered unless otherwise ordered by the Court or a judge.
(c.) Where a pit delivers a statement of claim without being required to do so,
the Court or a judge may make such order as to the costs occasioned thereby as
shall seem just, if it appears that the delivery of a statement of claim was un-
necessary or improper": Jud. Rules, Order 21, iiile 1.
" In Probate actions the pit shall, unless otherwise ordered by the Court or a
judge, deliver his statement of claim within six weeks from the entry of appear-
ance by the deft, or from the time limited for his appearance, in case he has made
default; but where the deft has appeared the pit shall not be compelled to deliver
it until the expiration of eight days after the deft has filed his affidavit as to
scripts " : Jud. Rules, Order 21, rule 2.
" In Admiralty actions in rem the pit shall, within twelve days from the appear-
ance (rf the deft, deliver his statement of claim " : Jud. Rules, Order 21, rule 3.
" Where the writ is specially indorsed, and the deft has not dispensed with a
statement of claim, it shall be sufficient for the pit to deliver as his statehient of
claim a notice to the effect that his claim is that which appears by the indorse-
ment upon the writ, unless the Court or a judge shall order him to deliver a
further statement. Such notice may be either written or printed or partly
written and partly printed, and may be in the form No. 3 in Appendix (B.) " to
the Act, " and shall be marked on the face in the same manner as is required in
the case of an ordinary statement of claim. And when the pit is ordered to de-
liver such further statement it shall be delivered within such time as by such order
shall be directed, and if no time be so limited then within the time prescribed
by Rule 1 of this Order " : Jud. Rules, Order 21, rule 4.
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18 PLEADINGS.
Defence.
" Where a statement of claim is delivered to a deft he shall deliver his defence
within eight days from the delivery of the statement of claim, or from the time
limited for appearance, whichever shall he last, unless Buch time is extended hy
the Court or a judge " : Jud. Eules, Order 22, rule 1.
" A deft who has appeared in an action and stated that he does not require the
delivery of a statement of claim, and to whom a statement of claim is not
delivered, may deliver a defence at any time within eight days after his appear-
ance, unless such time is extended by the Court or a judge " : Jud. Eules,
Order 22, rule 2.
" Where leave has been given to a deft to defend under Order 14, rule 1, he
shall deliver his defence, if any, within such time as shall he limited by the order
giving him leave to defend, or if no time is thereby limited, then within eight
days after the order " : Jud. Rules, Order 22, rule 3.
"Where the Court or a judge shall be of opinion that any allegations of
fact denied or not admitted by the defence ought to have been admitted, the
Court may make such order as shall be just with respect to any extra costs
occasioned by their having been denied or not admitted " : Jud, Eules, Order 22,
rule 4.
" Where a deft by his defence sets up any counter-claim which raises questions
between himself and the pit along with any other person or persons, he shall add
to the title of his defence a further title similar to the title in a statement of
complaint, setting forth the names of all the persons who, if such counter-claim
were to be enforced by cross action, would be defts to such cross action, and shall
deliver his defence to such of them as are parties to the action within the period
within which he is required to deliver it to the pit": Jud. Rules, Order 22,
rule 5.
" Where any such person as in the last preceding rule mentioned is not a party
to the action, he shall be summoned to appear by being served with a copy of the
defence, and such service shall be regulated by the same rules as are hereinbefore
contained with respect to the service of a writ of summons, and every defence so
served shall be indorsed in the Form No. 4 in Appendix (B.) " to the Act, " or
to the like effect " : Jud. Rules, Order 22, rule 6.
" Any person not a deft to the action, who is served with a defence and counter-
claim as aforesaid, must appear thereto as if he had been served with a writ of
summons to appear in an action " : Jud. Eules, Order 22, rule 7.
" Any person named in a defence as a party to a coimter-claim thereby made
may deliver a reply within the time within which he might deliver a defence if
it were a statement of claim " : Jud. Rules, Order 22, rule 8.
" Where a deft by his statement of defence sets up a counter-claim, if the pit
or any other person named in manner aforesaid as party to such covmter-claim
contends that the claim thereby raised ought not to be disposed of way of
counter-claim, but in an independent action, he may at any time before reply
apply to the Court or a judge for an order that such counter-claim may be ex-
cluded, and the Court or a judge may, on the hearing of such application, make
such order as shall be just " ■ Jud. Eules, Order 22, rule 9.
" Where in any action a set-off or counter-claim is established as a defence
against the pit's claim, the Court may, if the balance is in favour of the deft,
give judgment for the deft for such balance, or may othei-wise adjudge to the
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PLEADINGS. 19
deft such relief as he may be entitled to upon the merits of the case " : Jud.
Eules, Order 22, rule 10. ,
"In Probate actions the party opposing a will may, with his defence, give
notice to the party setting up the will that he merely insists upon the will being
proved in solemn form of law, and only intends to cross-examine the witnesses
produced in support of the will, and he shall thereupon be at liberty to do so,
and shall be subject to the same liabilities in respect of costs as he would have
been under similar circumstances according to the practice of the Court of
Probate " : Jud. Rules, Order 22, rule 11.
Discontinuance.
" The pit may, at any time before receipt of the deft's statement of defence, or
after the receipt thereof before taking any other proceeding in the action (save
any interlocutory application), by notice in writing, wholly discontinue his action
or withdraw any part or parts of his alleged cause of complaint, and thereupon he
shall pay the deft's costs of the action, or, if the action be not wholly discontinued,
the deft's costs occasioned by the matter so withdrawn. Such costs shall be
taxed, and such discontinuance or withdrawal, as the case may be, shall not be a
defence to any subsequent action. Save as in this rule otherwise provided, it
shall not be competent for the pit to withdraw the record or discontinue the
action without leave of the Court or a judge, but the Court or a judge may,
before, or at, or after the hearing or trial, upon such terms as to costs, and as to
any other action, and otherwise as may seem fit, order the action to be discon-
tinued, or any part of the alleged cause of complaint to be struck out. The Court
or a judge may, in like manner, and with the like discretion as to terms, upon the
application of a defendant, order the whole or any part of his alleged grounds of
defence or counter-claim to be withdrawn or struck out, but it shall not be com-
petent to a defendant to withdraw his defence, or any part thereof, without such
leave " : Jud. Eules, Order 23.
" When a cause has been entered for trial, it may be withdrawn by either pit
or deft upon producing to the proper officer a consent in writing signed by the
parties " : Order 23, rule 2.
Eeply and Subsequent Pleadings.
" A pit shall deliver his reply, if any, within three weeks after the defence
or the last of the defences shall have been delivered, unless the time shall be
extended by the Court or a judge " : Jud. Eules, Order 24, rule 1.
" No pleading subsequent to reply other than a joinder of issue shall be pleaded
without leave of the Court or a judge, and then upon such terms as the Court or
judge shall think fit " : Jud. Eules, Order 24, rule 2.
" Subject to the last preceding rule, every pleading subsequent to reply shall be
delivered within four days after the delivery of the previous pleading, unless the
time shall be extended by the Court or a judge " : Jud. Eules, Order 24, rule 3.
" As soon as either party has joined issue upon any pleading of the opposite
party simply without adding any further or other pleading thereto, the pleadings
as between such parties shall be deemed to be closed " : Jud. Eules, Order 25.
c 2
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20 PLEADINGS.
Amendment of Pleadings.
When and how allowed.
" The Court or a judge may, at any stage of the proceedings, allow either party
to alter his statement of claim or defence, or reply, or may order to be struck out
or amended any matter in such statements respectively which may be scandalous,
or which may tend to prejudice, embarrass, or delay the fair trial of the action, and
all such amendments shall be made as may be necessary for the purpose of deter-
mining the real questions or question in controversy between the parties " : Jud.
Eules, Order 27, rule 1.
" The pit may, without any leave, amend his statement of claim once at any
time before the expiration of the time limited for reply, and before replying, or,
where no defence is delivered, at any time before the expiration of four weets
from the appearance of the deft who shall have last appeared " : Jud. Eules,
Order 27, rule 2.
" A deft who has set up in his defence any set-off or counter) claim may,
without any leave, amend such set-off or counter-claim at any time before the
expiration of the time allowed him for pleading to the reply, and before pleading
thereto, or in case there be no reply, then at any time before the expiration of
twenty-eight days from the filing of his defence": Jud. Rules, Order 27, rule 3.
" Where any party has amended his pleading under either of the last two pre-
ceding rules, the opposite party may, within eight days after the delivery to him
of the amended pleading, apply to the Court or a judge to disallow the amend-
ment, or any part thereof, and the Court or judge may, if satisfied that the justice
of the case requires it, disallow the same, or allow it subject to such terms as to
costs or otherwise as may seem just " • Jud. Eules, Order 27, rule 4.
" Where any party has amended his pleading under rule 2 or 3 of this Order,
the other party may apply to the Court or a judge for leave to plead or amend his
former pleading within such time and upon such terms as may seem just " : Jud.
Eules, Order 27, rule 5.
" In all cases not provided for by the preceding rules of this Order, application
for leave to amend any pleading may be made by either party to the Court or a
judge in Chambers, or to the judge at the trial of the action, and such amendment
may be allowed upon such terms as to costs or otherwise as may seem just : " Jud.
Eules, Order 27, rule 6.
Under the former practice if the pit obtained an order to amend after obtain-
ing an interim injunction, such order was prima facie without prejudice to
the injunction : Kennedy v. Lewis, 14 Jur. 166. And the order to amend need not
have contained the words " without prejudice," in order to save the injunction,
nor did these words if inserted preclude a deft from moving to dissolve the
injunction in a proper case: Morgan, 4th ed. 411, and cases cited.
Where the pit had amended his bill after giving notice of motion, the notice
was gone : Martin v. Frost, 8 Sim. 199 ; Motiypenny v. Monypenny, 1 W. E. 99 ;
whether the motion was for a receiver or an injunction : Smith v. Dixon, 12 W. E.
934.
But a writ of ne exeat regno was not lost by the amendment of the biU : Orant
V. Orant, 5 Kuss. 189.
An insufficient answer, held or admitted to be such, was treated as no answer :
Bird V. Husler, 1 Euss. & M. 327 ; Turner v. Tiiiner, 4 Sim. 49 ; Dapper v.
Durant, 3 Mer. 465.
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PLEADINGS. 21
An amendment of the bill after an answer had been put in, and before it was
held or admitted to be insufficient, operated as an admission of sufficiency, and as
a waiver of exceptions : De la Torre v. Bernalls, 4 Madd. 396 ; Jacob v. Hale,
12 Ves. 458.
Under the former practice, an order for leave to amend a bill only for the pur-
pose of rectifying some clerical error in names, dates, or sums might have been
obtained at any time without notice : Cous. Ord. 9, rule 9.
And where there was a sole deft, or where there being several defts they all
joined in the same answer, the pit might after answer and before replication or
undertaking to reply, have obtained under the former practice an order of course
for leave to amend at any time within four weeks after the answer was to be
deemed or be held' to be suflBcient : Cons. Ord. 9, rule 10.
And where there were several defts who did not join in the same answer,
the pit (if not precluded from amending, or limited as to the time for amend-
ing by some former order) might after answer, and before replication or under-
taking to reply, at any time within four weeks after the last of the answers
required to be put in was to be deemed or be held to be sufficient, have obtained
an order of course for leave to amend at any time within four weeks after the
answer was to be deemed or be held to be sufficient : Cons. Ord. 9, rule 10 ; and
see Morgan, 4th ed. 413, and cases there cited.
Under the former practice a special order for leave to amend was not granted
without evidence to the effect, first, that the draft of the proposed amendments
had been approved and signed by counsel (now unnecessary) ; and, secondly, that
such amendment was not intended for the purpose of delay or vexation, but
because the same was considered to be material for the case of the plf: Cons. Ord.
9, rule 14.
After the pit had filed or undertaken to file a replication, or after the expira-
tion of four weeks from the time when the answer or the last of the answers re-
quired to be put in was to be deemed or was held to be sufficient, a special order
for leave to amend was not granted without further affidavit shewing that the
matter of the proposed amendment was material, and could not with reasonable
diligence have been sooner introduced : Cons. Ord. 9, rule 15.
The affidavits referred to in the last- mentioned rule were' to be made by the
pit and his solicitor, or by the solicitor alone, in case the pit, from being abroad or
otherwise, was unable to join therein : Cons. Ord. 9, 1'ule 16.
The affidavits need not have set out all the proposed amendments, but must
have shewn circumstances from which the Court could itself judge as to the
materiality and diligence : Morgan, 4th ed. 414, and eases there cited.
Where the application under Cons. Ord. 9, rule 15, was merely for the purpose
of adding parties, and not of adding new facts or cbarges, the withdrawal of the
replication was not essential.
And an order to amend after replication by simply adding parties has been
granted ex parte : Bryan v. Wastell, 2 W. R. 335 ; but see contra, Hitchcock v.
Jaques, 9 Beav. 192.
Default of Amendment after Order obtained.
" If a party who has obtained an order for leave to amend a pleading delivered
by him does not amend the same within the time limited for that purpose by the
order, or if no time is thereby limited, then within fourteen days from the date of
the order, such order to amend shall on the expiration of such limited time
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22 PLEADINGS.
^,s aforesaid, or of suph fourteen days, as the case may be, become igso facto void,
unless the time is extended by the Court or a judge": Jud. Bules, Order 27,
rule 7.
Under the former practice if the pit did not amend within the period allowed
for that purpose it was held that a second order of course was irregular : Dolby v.
Ohallin, 11 Beav. 61.
Amendments at the Heaeing.
Where a cause which stood for hearing was called on, but could not be decided
by reason of a want of parties or other defect on the part of the pit, and was
therefore struck out of the paper, and the same cause was again set down, the
deft was allowed the taxed costs occasioned by the first setting down, although he
did not obtain the costs of the suit : Cons. Ord. 40, rule 21.
Where a cause being in the paper for hearing was ordered to be adjourned upon
payment of the costs of the day, the party to pay the same had to pay the sum
of £10 unless the Court otherwise directed : Cons. Ord. 40, rule 22.
Usually amendments were allowed at the hearing only for the purpose of
making the record complete as to parties, or adapting the prayer to the case made
by the bill : Dan. 4th ed. 380.
Upon the question of allowing amendments /w other purposes, see observations
of Turner, L.J., in Lord Darnley v. London, Chatham, and Dover Ry. Co., 1 De
G. J. & S. 204 ; 9 Jur. (N.S.) 452.
Where at the hearing an order was made for the cause to stand over, with
liberty for the pit to amend within a limited time by adding parties, and in de-
fault that the bill should be dismissed with costs, it was held upon default by
the pit that the cause was out of Court without further order : Stevens v. Praed,
2 Cox, 374; but see S. 0. 375.
Amendment, how made — Delivery of Amended Pleading.
" A pleading may be amended by written alterations in the pleading which
has been delivered, 'and by additions on paper to be interleaved therewith if
necessary, unless the amendments require the insertion of more than 144 words
in any one place, or are so numerous or of such a nature that the making them in
writing would render the pleading difficult or inconvenient to read, in either of
which cases the amendment must be made by delivering a print of the pleading
as amended " : Jud. Rules, Order 27, rule 8.
" Whenever any pleading is amended such pleading when amended shall be
marked vrith the date of the order, if any, under which the same is so amended,
and of the day on which such amendment is made, in maimer following, viz.
amended — day of — : Jud. Rules, Order 27, rule 9.
" Whenever a pleading is amended, such amended pleading shall be delivered
to the opposite party within the time allowed for amending the same'': Jud.
Rules, Order 27, rule 10.
Amendment of Summons.
" The Court or a judge may at any stage of the proceedings allow the pit to
amend the writ of summons in such manner and on such terms as may seem
just": Ordur 27, rule 11 (February 1876).
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23 )
CHAPTER IV.
DBMUKEEE.
Demurrer allowed to Part of Pit's Statement of Claim — to Left's
Defence, &g.
The demurrer put in by the Deft [Pit] to the Pit's statement of
claim [or, Deft's statement of defence, or, of set-off, or, of counter-
claim] or to so much of the Pit's statement of claim as claims
or as alleges as a breach of contract the matters mentioned in para-
graph 17, or as the case may he'] coming on to be heard, &c., in the
presence of counsel, &c.
This Court doth hold the said demurrer to be good and sufficient,
and doth therefore order that the same do stand and be allowed accord-
ingly. And [unless otherwise ordered] Let the said — [party whose plead-
ing is demurred to] pay to the said — [jparty demurring] his costs of the
said demurrer, to be taxed, &c.
Demurrer allowed to whole of Statement of Claim.
The demurrer put in by the Deft to the whole of the statement of
claim of the Pit in this action coming on to be heard, &c., in the pre-
sence of counsel, &c., this Court doth hold the said demurrer to be
good and sufficient, and doth therefore order that the same do stand
and be allowed.
Unless otherwise ordered : Let the Pit pay to the Deft his costs of
this action (including therein the costs of the said demurrer) to be
taxed, &c.
If ordered: Let the Pit be at liberty within — days to amend his
said statement of claim as he may be advised.
Demurrer overruled.
The demurrer put in by the Deft [Pit] to the Pit's statement of
claim [or, Deft's statement of defence, or, of set-off, or, of counterclaim]
or to so much of the Pit's statement of claim as claims [or,
as alleges, &c.J coming on to be heard, &c., in the presence of counsel
for, &c., this Court doth hold the said demurrer to be insufiScient, and
doth therefore order that the same be overruled.
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24 DEMURRER.
Unless otherwise ordered: Let the Deft [Pit] pay to the Pit [Deft]
his costs of the said demurrer, to be taxed, &c.
Demurree— By Whom— IForm of— Delivery of.
" Any party may demur to any pleading of the opposite party, or to any part
of a pleading, setting up a distinct cause of action, ground of defence, set-off,
counter-claim, reply, or as the case may be, to which effect can be given by the
Court as against the party demurring " : Jud. Eules, Order 28, rule 1.
" A demurrer shall state specifically whether it is to the whole or to a part, and
if so, to what part of the pleading of the opposite party. It shall state some
ground in law for the demurrer, but the party demurring shall not on the argu-
ment of the demurrer be limited to the ground so stated. A demurrer may be
in the Form 28 in Appendix (0.) " to the Act. "If there is no ground, or only a
frivolous ground of demurrer stated, the Court or judge may set aside such
demurrer with costs " : Jud. Eules, Order 28, rule 2.
iForm above referred to.
In the High Court of Justice.
Division.
A. B. V. C. D.
The deft [pit] demurs to the [pit's statement of complaint, or, deft's
statement of defence, or, of set-off, or, of counter-claim], [or, to so much
of the pit's statement of claim as claims or, as alleges as a breach
of contract the matters mentioned in paragraph 17, or, as the case may
be'], and says that the same is bad in law, on the ground that [7i«re
state a grov/nd of demurrer], and on other grounds sufScient in law to
sustain this demurrer.
" A demurrer shall be delivered in the same manner and within the same time
as any other pleading in the action " : Jud. Eules, Order 28, rule 3.
Combination of Demurrer and Defence.
" A deft desiring to demur to part of a statement of claim, and to put in a
defence to the other part, shall combine such demurrer and defence in one plead-
ing. And so in every case where a party entitled to put in a further pleading
desires to demur to part of the last pleading of the opposite party, he shall com-
bine such demurrer and other pleading " : Jud. Eules, Order 28, rule 4.
Pleading and Demueiung.
" If the party demurring desires to be at liberty to plead as well as demur to
the matter demurred to,"iie may before demurring apply to the Court or judge for an
order giving him leave to do so ; and the Court or judge, if satisfied that there is
reasonable ground for the demuiTer, may make an order accordingly, or may
reserve leave to him to plead after the demurrer is overruled, or may make such
other order and upon such terms as may be just" : Jud. Eules, Order 28, rule 5.
Entering Demurrer for- Argument — Default of Entry.
" Where a demurrer either to the whole or part of a pleading is delivered, either
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DEMURRER. 25
party may enter the demurrer for argument immediately, and the party so
entering such demurrer shall on the same day give notice thereof to the other
party. If the demurrer ^all not he entered, and notice thereof given within ten
days after delivery, and if the party whose pleading is demurred to does not
within such time serve an order for leave to amend, the demurrer shall he held
sufficient for the same purposes and with the same result as to costs as if it had
heen allowed on argument " : Jud. Rules, Order 28, rule 6.
Pleadins pending Demueeer.
" While a demurrer to the whole or any part of a pleading is pending, such
pleading shall not he amended, unless hy order of the Court or a judge ; and no
such order shall he made except on payment of the costs of the demurrer " : Jud.
Rules, Order 28, rule 7.
Demueeer allowed — Costs.
" Where a demurrer to the whole or part of any pleading is allowed upon argu-
ment, the party whose pleading is demurred to shall, unless the Court otherwise
order, pay to the demurring party the costs of the demurrer " : Jud. Rules, Order
28, rule 8.
" If a demurrer to the whole of a statement of claim he allowed, the pit, suhject
to the power of the Court to allow the statement of claim to he amended, shall
pay to the demurring deft the costs of the action, unless the Court shall otherwise
order": Jud. Rules, Order 28, rule 9.
" Where a demurrer to any pleading or part of a pleading is allowed in any
case not falling within the last preceding rule, then (suhject to the power of the
Covut to allow an amendment) the matter demurred to shall as hetween the
parties to the demurrer he deemed to he struck out of the pleadings, and the
rights of the parties shall he the same as if it had not heen pleaded " : Jud. Rules,
Order 28, Rule 10.
DeMUEEEE OVERRtTLED — CoSTS.
"Where the demurrer is overruled, the demurring party shall pay to the
opposite party the costs occasioned hy the demurrer, unless the Court shall other-
wise direct " : Jud Rules, Order 28, rule 11.
" Where a demurrer is overruled, the Court may make such 'order and upon
such terms as the Court shall deem right for allowing the demurring party to
raise hy pleading any case he may he desirous to set up in opposition to the
matter demurred to": Jud. Rules, Order 28, rule 12.
Entering Demueeer foe Aegument.
« A demurrer shall he entered for argument hy delivering to the proper officer
a memorandum of entry in the Eoim No. 29 in Appendix (C.) " to the Act : Jud.
Rules, Order 28, rule 13.
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CHAPTBE V.
DEFAULT OF PLEADING.
Nan-delivery hy Pit of Statement of Claim — Dismissal for want of
Prosecution.
Upon motion, &c., by the counsel for the Deft — [If Pit appears, and
upon hearing counsel for the Pit], and upon reading, &c., whereby it
appears that the Pit's statement of claim in this action was not
delivered to' the said Deft by the — day of — last, the time allowed
for that purpose [If Pit does not appear : and an affidavit of service of
notice of motion on the Pit], Let the Pit's action stand dismissed out
of this Court as against the Deft B., with costs to be taxed by the
taxing master, and paid by the Pit A. to the said Deft B.
Default of Pleading.
Non-delivery of Statement of Claim.
" If tlie pit, being bound to deliver a statement of claim, does not deliver the
same within the time allowed for that purpose, the deft may at the expiration of
that time apply to the Court or a judge to dismiss the action with costs for want
of prosecution, and on the hearing of such application the Court or judge may, if
no statement of claim has been delivered, order the action to be dismissed accord-
ingly, or may make such other order on such terms as the Court or judge shall
seem just " : Jud. Rules, Order 29, rule 1.
As to default in pleading where the claim is for a debt or liquidated demand,
or for detention of goods and pecuniary damages, or for a debt or liquidated de-
mand, and also for detention of goods and pecuniary damages, or pecuniary
damages only, or for the recovery of land, or in Probate actions, see Jud. Eules,
Order 29, rules 2-9 inclusive.
Under the former practice in Chancery a deft although insolvent was entitled
to have his bill dismissed with costs : Lever v. Heritage, 5 Jur. (N.S.) 215.
But if the pit obtained and served an order to amend his bill, the order was an
answer to the motion ; Peacock v. Sievier, 5 Sim. 553. The order to amend must
have been served : Jones v. Charlemont, 12 Jur. 319.
And if after service of the notice to dismiss the pit filed replication, it was an
answer to the motion : Story v. Official Manager of National Insurance Co.,
2 Now Rep. 351.
In strictness the pit must have filed his replication and tendered costs before
the hearing of the motion. But sec Williams v. Eowland, 3 Jur. (N.S.) 658 ;
Pollard V. Doyle, 2 W. R. 509, where further time was given.
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DEFAULT OF PLEADING. 27
NON-DELIVEEY BY DeFT OF DEFENCE OR DeMUEREE.
" In all other actions than those in the preceding rules of this Order mentioned "
(actions for a debt or liquidated demand, detention of goods and pecuniary
damages, the recovery of land, or Probate actions), " if the deft makes default in
delivering a- defence or demurrer, the pit may set down the action on motion for
judgment, and such judgment shall he given as upon the statement of claim the
Court shall consider the pit to he entitled to" : Jud. Rules, Order 29, rule 10.
" Where in any such action as mentioned in the last preceding rule there are
several defts, then, if oue of such defts make such default as aforesaid, the pit may
either set down the action at once on motion for judgment against the deft so
making default, or may set it down against him at the time when it is entered for
trial or set down on motion for judgment against the other defts " : Jud. Eules,
Order 29, rule 11.
Non-delivery of Eeply, or Demurrer, or subseqdent Pleading.
" If the pit does not deliver a reply or demurrer, or any party does not deliver
any subsequent pleading or a demurrer within the period allowed for that pur-
pose, the pleadings shall be deemed to be closed at the expiration of that period ;
and the statements of fact in the pleading last delivered shall be deemed to be
admitted " : Jud. Bules, Order 29, rule 12.
Issues between Persons not Plts or Defts.
" In any case in which issues arise in an action other than between pit and deft,
if any party to any such issue makes default in delivering any pleading, the
opposite party may apply to the Court or judge for such judgment, if any,
as upon the pleadings he may appear to be entitled to. And the Court may
order judgment to be entered accordingly, or may make such other order as may
be necessary to do complete justice between the parties " : Jud. Eules, Order 29,
rule 13.
Judgment by Default set aside.
" Any judgment by default, whether under this Order or under any other of
these rules, may be set aside by the Court or a judge upon such terms as to costs
or otherwise as such Court or judge may think fit": Jud. Eulesy Order 29,
rule 14.
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CHAPTER VI.
DISCOVEEY AND INSPECTION.
INTEREOGATOEIES.
" The pit may, at tlie time of delivering his statement of claim, or at any sub-
sequent time not later than the close of the pleadings, and a delt may at the
time of delivering his defence, or at any subsequent time not later than the close
of the pleadings, without any order for that purpose, and either party may at any
time by leave of the Court or judge, deliver interrogatories in writing for the
examination of the opposite party or parties, or any one or more of such parties,
with a note at the foot thereof, stating which of such interrogatories each of such
persons is required to answer : Provided that no party shall deliver more than one
set of interrogatories to the same party without an order for that purpose " : Jud.
Eules, Order 31, rule 1.
" The Court in adjusting the costs of the action shall at the instance of any
party inquire or cause inquiry to be made into the propriety of exhibiting such
interrogatories, and if it is the opinion of the taxing master or of the Court or
judge that such interrogatories have been exhibited unreasonably, vexatiously, or
at improper length, the costs occasioned by the said interrogatories and the answers
thereto shall be borne by the party in fault" : Jud. Eules, Order 31, rule 2.
Interrogatories may be in the Form No. 7 in Appendix " (B.) to the Act, " with
such variations as circumstances may require " : Jud. Eules, Order 31, rule 3.
Interrogatories to Body Corporate or Joint Stock Company.
" If any party to an action be a body corporate or a joint stock companj"-,
whether incorporated or not, or any other body of persons empowered by law to
sue or be sued, whether in his own name or in the name of any officer or other
person, any opposite party may apply at chambers for an order allowing him to
deliver interrogatories to any member or officer of such corporation, company, or
body, and an order may be made accordingly " : Jud. Eules, Order 31, rule 4.
Interrogatoeies struck out.
" Any party called upon to answer interrogatories, whether by himself or by
any member or officer, may within four days after service of the interrogatories
apply at chambers to strike out the interrogatory on the ground that it is- scan-
dalous or irrelevant, or is not put hona fide for the purposes of the action, or that
the matter inquired after is not sufficiently material at that stage of the action, or
on any other ground. And the judge, if satisfied that any interrogatory is objec-
tionable, may order it to be struck out " : Jud. Eulos, Order 31, rule 5.
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DISCOVERY AND INSPECTION. 29
Answers to Inteerogatories — Affidavit.
" Interrogatories shall be answered by affidavit to be filed within ten days, or
within such further time as a judge in chambers may allow " : Jiid. Eules, Order
31, rule 6.
An affidavit in answer to interrogatories shall, if exceeding three folios, be
printed, and may be In the Form No. 8 in Appendix (B.) to the Act, with such
variations as circumstances may require : Jud. Eules, Order 31, rule 7.
Objection to answering Interrogatory — Affidavit.
" Any objection to answering any interrogatory may be taken, and the ground
thereof stated in the affidavit " : Jud. Rules, Order 31, rule 8.
" No exceptions shall be taken to any affidavit in answer, but the sufficiency or
otherwise of any such affidavit objected to as insufficient shall be determined by
the Court or a judge on motion or summons " : Jud. Rules, Order 31, rule 9.
Omission to answer Interrogatories — Insufficient Answer —
Order.
" If any person interrogated omits to answer, or answers insufficiently, the
party interrogating may apply to the Court or a judge, requiring him to answer,
or to answer further, as the case may be. And an order may be made requiring
him to answer or answer further, either by affidavit or by viva vocs examination,
as the judge may direct " : Jud. Rules, Order 31, rule 10.
Documents — Production on Oath.
Upon the application, &c.. Let the Pit A. [or. Deft B.] on or before
the — day of — [or, within — days after service of this order] make
and file a fall and sufScient affidavit or affidavits [If company : to be
made by their clerk or secretary], stating whether he has or has had
in his possession or power any, and if any what, documents relating to
the matters in question in this action, and accounting for the same.
Let the Pit [or. Deft B.] at all seasonable times, upon reasonable notice,
produce at the office of — , situate at — , the documents which by such
affidavit shall appear to be in his possession or power, except such of
the same (if any) as he may by such affidavit or affidavits object to pro-
duce. Let the applicants — , their solicitors and agents, be at liberty
to inspect and peruse the documents so produced, and to take copies
and abstracts thereof and extracts therefrom as the applicants shall be
advised, at their expense. Let the Pit H. [or. Deft B.] produce the same
upon any examination of witnesses in this action, and at the hearing
thereof, as the applicants shall require. And the applicants are to be
at liberty to make such further application as to all or any of the
documents mentioned in such affidavit or affidavits as they may be
advised.
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30 DISCOVERY AND INSPECTION.
Inspection of Documents admitted or referred to.
Upon the application, &c., Let tlie Pit A. [or. Deft B.] be at liberty
at all seasonable times, upon reasonable notice, to inspect at the ofSce
of — , situate at — , the several documents mentioned in the affidavit
of — , filed the — day of — , and admitted to be in his possession or
power, and to take copies and abstracts thereof : and extracts there-
from as he shall be advised, at his expense. If ordered : But previously
to such inspection, the Pit A. [or. Deft B.] is to be at liberty to seal up
such parts of the said documents as according to an affidavit to be
made by him do not relate to the matters in question in this action.
Let the Pit A. [or. Deft B.] produce the said documents upon any exami-
nation of witnesses in this action and at the hearing thereof as the
applicant shall require.
Peodtjction bt Order — Affidavit.
"It shall be lawful for the Court or a judge at any time during the pendency
therein of any action or proceeding to order the production by any party thereto,
upon oath, of such of the documents in his possession or power, relating to any
matter in question in such action or proceeding, as the Court or judge shall think
right ; and the Court may deal with such documents, when produced, in such
manner as shall appear just": Jud. Rules, Order 31, rule 11.
" Any party may, without fihng any affidavit, apply to a judge in chambers
for an order directing any other party to the action to make discovery on oath of
the documents which are or have been in his possession or power relating to any
matter in question in the action " : Jud. Rules, Order 31, rule 12.
The affidavit to be made by a party against whom such order as is mentioned
in the last preceding rule has been made shall specify which, if any, of the docu-
ments therein mentioned he objects to produce, and it may be in the Form No. 9
in Appendix (B.) to the Act, with such variations as circumstances may require :
Jud. Rules, Order 31, rule 13.
Form above referred to.
" I, — , make oath and say as follows : —
" 1. I have in my possession or power the documents relating to the
matters in question in this suit set forth in the first and 'second parts
of the first schedule hereto.
" 2. I object to produce the said documents set forth in the second
part of the said first schedule hereto.
" 3. That \here state upon what grounds the objection is made, and
verify the facts as far as may he.]
" 4. I have had, but have not now, in my possession or power the
documents relating to the matters in question in this suit set forth in
the second schedule hereto.
"5. The last-mentioned documents were last in my possession or
power on [state when.]
" 6. That [here state what has become of the last-mentioned dccu-
ments, and in whose possession they now are].
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DISCOVERY AND INSPECTION. 31
" 7. According to the best of my knowledge, information, and belief,
I have not now and never had in my possession, custody, or power, or
in the possession, custody, or power of my solicitors or agents, solicitor
or agent, or in the possession, custody, or power of any other persons or
person on my behalf, any deed, account, book of account, voucher, re-
ceipt, letter, memorandum, paper, or writing, or any copy of or extract
from any such document, or any other document whatsoever, relating
to the matters in question in this suit, or any of them, or wherein any
entry has been made relative to such matters, or any of them, other
than and except the documents set forth in the said first and second
schedules hereto."
Notice to pkoduce Documents referred to in Pleadings or Affidavit.
" Every party to an action or other proceeding shall be entitled, at any time
before or at the hearing thereof, by notice in writing, to give notice to any other
party, in whose pleadings or affidavits reference is made to any document, to
produce such document for the inspection of the party giving such notice, or of
his solicitor, and to permit him or them to take copies thereof ; and any party
not complying with such notice shall not afterwards be at liberty to put any such
document in evidence on his behalf in such action or proceeding, unless he shall
satisfy the Court that such document relates only to his own title, he being a deft
to the action, or that he had some other sufficient cause for not complying with
such notice " : Jud. Rules, Order 31, rule 14.
Notices to any party to produce any documents referred to in his pleading or
affidavit shall be in the Form No. 10 in Appendix (B.) to the Act : Jud. Rules,
Order 31, rule 15.
Inspection of Docoments referred to in Notice.
" The party to whom such notice is given shall, within two days from the
receipt of such notice, if all the documents therein referred to have been set forth
by him in such affidavit as is mentioned in rule 10, or if any of the documents •
referred to in such notice have not been set forth by him in any such affidavit,
then within four days from the receipt of such notice, deliver to the party giving
the same a notice stating a time within three days from the delivery thereof at
which the documents, or such of them as he does not object to produce, may be
inspected at thg office of his solicitor, and stating which (if any) of the documents
he objects to produce, and on what gi-ound." Such notice may be in the Form
No. 11 in Appendix (B.) to the Act, with such variations as circumstances may
require: Jud. Rules, Order 31, rule 16.
" If the party served witb notice under rule 15 omits to give such notice of a
time for inspection, or objects to give inspection, the party desiring it may apply
to a judge for an order for inspection " : Jud. Rules, Order 31, rule 17.
Application for Order — Affidavit.
"Every application for an order for inspection of documents shall be to a
judge. And, except in the case of documents referred to in the pleadings or aSi-
davits of the party against whom the application is made, or disclosed in his
affidavit of documents, such application shall be founded upon an affidavit shewing
of what documents inspection is sought, that the party applying is entitled to
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32 DISCOVERY AND INSPECTION".
inspect them, aad that they are in the possession or power of the other party " :
Jud. Rules, Order 31, rule 18.
Discovery or Inspection reserved.
" If the party from whom discovery of any kind or inspection is sought objects
to the same, or any part thereof, the Court or a judge may, if satisfied that the
right to the discovery or inspection sought depends on the determination of any
issue or question in dispute in the action, or that for any other reason it is
desirable that any issue or question in dispute in the action should be determined
before deciding upon the right to the discovery or inspection, order that such
■ issue or question be determined first, and reserve the question as to discovery
and inspection " : Jud. Rules, Order 31, rule 19.
Eight to Production.
The party ordered to produce documents may seal up such of the documents
as by his affidavit he swears to be privileged, and the order for production will,
upon his application, be qualified accordingly : Guard v. Penswick, 1 Sw. 533 ;
Curd V. Curd, 1 Hare, 274 ; 6 Jur. 307 ; Mansell v. Feeney, 2 J. & H. 320 ; Tal-
bot V. Marshfidd, L. R. 1 Eq. 6 ; 11 Jur. (N.S.) 901.
The application for leave to seal up need not be made on the original summons
for production : Talbot v. Marshfidd, L. E. 1 Eq. 6.
If the affidavit contains statements at variance with each other, or the Court is
of opinion that the deponent is wilfully misrepresenting his case, inspection will
be ordered of the documents or the portions of them refused to be disclosed : Bower
V. Fernie, 3 My. & Or. 632 ; Oreenwood v. Oreenwood, 6 W. E. 119 ; see also
Westminster and Brymbro Colliery Co. v. Clayton, 12 W. E. 123.
And the Court will, if necessary, unseal documents for the purpose of ex-
amining them : Lafone v. Falkland Islands Co., 27 L. J. (Ch.) 25.
The party against whom the discovery is sought must make the affidavit,
although he insists that he cannot be compelled to produce any documents :
Bumbold v. Forteath, 3 K. & J. 44; Lazarus v. Mosley, 5 Jur. (N.S.) 1119;
Nicholl V. Jones, 13 W. E. 451 ; cited in Morgan, 173.
An affidavit of the deponent that title deeds of which discovery is sought
do not " to the best of his knowledge, information, and belief," impeach his case,
is sufficient if it also states that the documents do not prove, or tend to prove, the
title of his adversary: Minet v. Morgan, L. R. 8 Ch. 3(51, 365.
Possession of the agent is possession of the party himself: Beid v. Langlois,
1 Mac. & G. 627 ; 14 Jur. 467 ; Murray v. Walter, Cr. & P. 114, 125 ; 3 Jur.
719 ; Morice v. Swaby, 2 Beav. 500 ; Wright v. Mayer, 6 Ves. 280 ; Fenwick v
Beid, 1 Mer. 114, 123.
Where a document is not in the exclusive possession of the person against
whom discovery is sought production will not be ordered : Walker v. Wildman,
6 Madd. 47 ; Taylor v. Bundell, Cr. & P. 114 ; Beid v. langton, 1 Mac. & G.
627, 636 ; Morrell v. Wotton, 13 Beav. 105 ; 15 Jur. 319.
' A party objecting to produce on the ground of joint ownership is bound to
shew the Court the nature of the joint ownership : Bovill v. Cowan, L. E. 5 Ch. 495 ■
see also Taylor v. Bundell, Cr. & P. 104 ; Walhurn v. Ingilby, 1 My. & K. 61, 79.
The Court will not order the discovery of documents in the possession of an
agent holding them on behalf of other persons besides the parties to the suit:
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DISCOVERY AND INSPECTION. 33
Murray v. Walker, Or. & P. 114, 125 ; Lopez v. Deacon, 6 Beav. 254, 258 ; Airey
V. Hall, 2 De G. & Sm. 489 ; 12 Jur. 1043 ; Edmonds v. Foley, 30 Beav. 282 ;
Lord Eglinton v. Laml, 14 W. E. 170.
And directors of a company will not be ordered to produce documents in which
other directors have a joint interest: Penney v. Goode, X Dr. 474; Reid v.
La/nghis, 1 Mac. & Gr. 627 ; Lazarus v. Mozhy, 5 Jur. (N.S.) 1120.
A party must produce relevant documents in the possession of his solicitor or
agent, and cannot refuse because the solicitor says they are irrelevant, unless he
has inspected them : Morgan, 174 ; Mcintosh v. Great Western By. Co., 4 De G.
M. & G. 544 ; Manhy v. Bewieke, 8 De G. M. & G. 476.
And the solicitor cannot refuse to produce on the ground of his lien : Locket
V. Gary, 10 Jur. (N.S.) 144; Sope v. Liddell, 7 De G. M. & G. 331 ; Be Came-
ron's Cotdhrook By. Co., 25 Beav. 1.
Documents lent to a person against whom recovery was sought, and by a person
not a party, have been ordered to be produced : Bwrkethman v. White, 2 W. E.
380 ; see also Beynolds v. Godlee, 4 K. & J. 88.
A party cannot object to produce letters admitted to be material but marked
private and confidential, and although the sender objected to the production :
Mopkinson v. Lord Burleigh, L. E. 2 Ch. 477.
If documents, though relevant, are not material to the applicant's case, produc-
tion will not be ordered: Smith v. Bowling, 10 Jur. 63: Mc Hardy v. Eitchcock,
11 Beav. 73.
As to relevancy, the Court accepts the statement on oath of the party against
whom production is sought ; but docs not accept his assertion upon the point
whether they will or will not establish the applicant's case : Dan. 5th ed., 1687,
and cases cited.
Where a deft puis his defence upon a particular document relating to his own
title and in his possession, the pit is entitled to production, and to see whether the
deft has rightly stated it : Eardman v. EUames, 2 M. & K. 732, 745 ; Adams v.
Fisher, 3 My. & Cr. 526, 549 ; see aLso Mcintosh v. Great Western By. Co., 13 Jur.
179 ; 1 Mac. & G. 73 ; LaJtimer v. Neaie, 4 CI. & F. 570 ; Belsham v. Percival,
10 Jur. 772.
But the mere statement in an answer of the substance of a document, the contents
of which the deft is not bound to disclose, does not make him liable to produce
the document itself: Glover v. Ball, 2 Phil. 484 ; see also Comhe v. Corporation
of London, 1 T. & C. 631, 651 ; 6 Jur. 571 ; 10 Jur. 57.
Generally, a solicitor cannot be compelled, at the instance of a third party, to
disclose matters which have come to his knowledge in his professional business
for a client: Greenough v. Gaskill, 1 M. & K. 98, 101.
Documents tending to criminate are privileged : Waters v. Earl of Shaftesbury.,
14 W. R. 259 ; Bowes v. McKernan, 30 Beav. 547.
So, too, cases laid before counsel on behalf of the party against whom discovery
is sought involving the question in dispute : Bolton v. Corporation of Liverpool,
1 My. & K. 88, 93 ; Greenough v. Gaskdl, supra.
And confidential communications between, solicitor or counsel and client, either
in the progress of the suit or with reference to it piior to its commencement :
Flight V. Bohinson, 8 Beav. 22 ; 8 Jur. 888 ; Beece v. Trye, 9 Beav. 316 ; Galley
V. Bichards, 19 Beav. 401 , Clagett v. Phillips, 7 Jur. 31 ; Lord Walsingham v.
Goodrick, 3 Hate, 122. *■
And cases after litigation commenced, or in contemplation of litigation on the
same subject with other persons, with the view of asserting the same right : Comie
D
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34 DISCOVERT AND INSPECTIOK.
V. Corporation of London, 1 Y. & 0. 631 ; 6 Jur. 571 ; Holmes v. Baddeley,
1 Ph. 476, 480 ; Enthoven v. Gdbh, 5 De G. M. & G. 632 ; Jenhym v. Bushby,
L. E. 2 Eq. 547.
And all communications which pass hetween the solicitor and client in the
course of professional business, and not those only which relate to litigation com-
menced or in contemplation, are privileged : Nias v. Northern and Eastern By. Co.,
3 My. & Cr. 355, 357; Herring v. Cloherry, 1 Ph. 91 ; Manser v. Dix, 1 K. & J. 451 ;
1 Jur. (N.S.) 466 ; La/one v. Falkland Islands Co., 4 K. & J. 34 ; Mornington v.
Morninytcm, 2 J. & H. 697 ; Pearse v. Pearse, 1 De G. & Sm. 12 ; Lawrence v.
Campbell, 4 Dr. 485, 490 ; Minet v. Margai,, L. E. 8 Oh. 361.
But there is no protection as to letters between parties themselves, or from a
stranger to a party, merely because such letters may have been written in order
to enable the person to whom they were sent to communicate them in professional
confidence to his solicitor : Ooodell v. Little, 1 Sim. (N.S.) 155 ; Olyn v. Cavl-
field, 3 Mao. & G. 463 ; 15 Jur. 807 ; see also Blach v. Galsworthy, 2 Giff. 453.
And even opinions of counsel and letters in which pit and deft are jointly
interested must be produced : Beynell v. Sprye, 10 Beav. 51 ; Warde v. Warde,
3 Mac. & G. 365.
And a trustee taking counsel's opinions in the administration of the trust, and
not for the purposes of defence in a litigation against himself, is bound to produce
them to the cestui que tnist : Wynne v. Humhertson, 27 Beav. 421 ; Talbot v.
Marshfield, 2 Dr. & Sm. 549.
And where disputes arose between two cestuis que trust,a,ni the trustee acted as
solicitor for one of them, the communications between the solicitor and the cestuis
que trust were held not privileged as against the other : Tugwdl v. Hooper, 10 Beav.
348.
But a mere claimant to an estate is not entitled to the production of cases and
opinions taken by a trustee : Wynne v. Humhertson, 27 Beav. 421.
Nor is the cestui que trust entitled to the production of cases and opinions of
cou nsel taken by a trustee on his own behalf and not on behalf of the trust estate :
Thomas v. Secretary of State for India, 18 W. E. 312.
Counsel's indorsement of an order of Court is publici juris, and must be pro-
duced. But notes by counsel and insti-uctions given to him are privileged :
Nicholl V, Jones, 2 H. & M. 588 ; Walsham v. Stainton, 2 H. & M. 1.
And notes by a shorthand writer employed by one of the parties have been
ordered to be produced so far as they merely describe what took place in open
Court: Nicholl v. Janes, 2 H. & M. 588.
Where a party is charged with fraud, communications between him and his
solicitor with reference to the fraud are not privileged: Follett v. Jeffrys, 1 Sim.
(N.S.) 1 ; 15 Jur. 118 ; Bicssell v. Jackson, 9 Hare, 387 ; Feaver v. Williams,
11 Jur. (N.S.) 902.
.» Where a mortgagor executes a mortgasie deed and hands over the title deeds to
the mortgagee, the mortgagor is not entitled to the inspection of the deeds without
payment of principal, interest, and costs : Chichester v. Marquis of Donegal,
L. K. 5 Ch. 497, 502 ; see also Oill v. Eyton, 7 Beav. 155 ; Greenwood v. Bothwell,
7 Beav. 291 ; €risp v. Platel, 8 Beav. 62 ; Johnston v. 'Pucker, 11 Jur. 382.
Nor upon a bill to redeem will mortgagees be ordered to disclose accounts
between themselves and other persons : Bridgewater v. De Winton 9 Jur (N S )
1270 ; 12 W. E. 40.
But the mortgagor is entitled to call for the production of the mortgage-deed
itself; Patch v. Ward, L. E. 1 Eq. 436 ; but see Howard v. i?o5jnson, 4 Dr. 522.
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DISCOVERT AND INSPECTION. 35
And a mortgagee taking a conveyance of the equity of redemption from a
trustee thereof with notice of the trust cannot withhold production of the convey-
ance in a suit by the cestui que trust for redemption : Smith v. Bournes, L. R.
1 Bq. 65.
A party obtaining information by the production of documents in the possession
of the other side is not at liberty to make it public, and an injunction will if
necessary be granted to restrain him : Williams v. Prince of Wales Life, &c., Co.,
23 Beav. 338.
Non-compliance with Order.
" If any party fails to comply with any order to answer interrogatories, or for
discovery or inspection of documents, he shall be liable to attachment. He shall
also, if a pit, be liable to have his action dismissed for want of prosecution, and if
a deft, to have his defence, if any, struck out, and to be placed in the same posi-
tion as if he had not defended, and the party interrogating may apply to the
Court or a judge for an order to that effect, and an order may be made accord-
ingly " : Jud. Rules, Order 31, rule 20.
Service of Oedek.
" Service of an order for discovery or inspection made against any party on his
sohoitor shall be sufficient service to found an application for an attachment for
disobedience to the order. But the party against whom the application for an
attachment is made may shew in answer to the application that he has had no
notice or knowledge of the order" : Jud. Rules, Order 31, rule 21.
Notice of the Order by the Solicitor to his Client.
" A solicitor upon whom an order against any party for discovery or inspection
is served under the last rule who neglects without reasonable excuse to give notice
thereof to his client shall be liable to attachment " : Jud. Rules, Order 31, rule 22.
Evidence of the Answers to Interrogatories.
" Any party may, at the trial of an action or issue, use in evidence any one or
more of the answers of the opposite party to interrogatories without putting in the
others : Provided always, that in such case the judge may look at the whole of the
answers, and if he shall be of opinion- that any other of them are so connected
with those put in that the last-mentioned answers ought not to be used without
them, he may direct them to be put in " : Jud. Rules, Order 31, rule 23,
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CHAPTER VII.
SPECIAL CASE.
" The parties may, after the writ of summons has been issued, concur in stating
the questions of law arising in the action in the form of a special case for the
opinion of the Court. Every such special case shall be divided into paragraphs
numbered consecutively, and shall concisely state such facts and documents as
may be necessary to enable the Court to decide the questions raised thereby.
Upon the argument of such case the Court and the parties shall be at liberty
to refer to the whole contents of such documents, and the Court shall be at
liberty to draw from the facts and documents stated in any such special case any
inference, whether of fact or law, wbich might have been drawn therefrom if
proved at a trial " : Jud. Rijles, Order 34, rule 1.
" If it appear to the Court or a judge, either from the statement of claim, or de-
fence, or reply, or otherwise, that there is in any action a question of law which it
would be convenient to have decided before any evidence is given or any question
or issue of fact is tried, or before any reference is made to a referee or an arbi-
trator, the Court or judge may make an order accordingly, and may direct such
question of law to be raised for the opinion of the Court, either by special case or
in such other manner as the Court or judge may deem expedient, and all such
further proceedings as the decision of such question of law may render unneces-
sary may thereupon be stayed " : Jud. Kules, Order 34, rule 2.
" Every special case shall be printed by the pit, and signed by the several
parties or their solicitors, and shall, be filed by the pit. Printed copies for the
use of the judges shall be delivered by the pit " : Jud. Rules, Order 34, rule 3.
A husband claiming to be interested in right of his wife may concur in such
case in his own name and in the name of his wife where the wife has no claim
to any interest distinct from her husband. A married woman claiming any in-
terest distinct from her husband may in her own right concur in such case,
provided her husband also concurs : 13 & 14 Vict. c. 35, s. 3.
The guardian of any infant claiming to be interested may concur in the case
in the name and on behalf of the infant, unless the guardian has an interest
adverse to the interest of the infant : 13 & 14 Vict. c. 35, s. 4.
Appointment of Guardian.
The Court may, by order to be made in the matter of any lunatic not so found
by inquisition, or in the matter of any infant, upon the application of any pelson
on the behalf of such lunatic, or upon the application of the infant, appoint a
person shewn by affidavit to be a fit person, and to have no interest adveise to
the interest of the lunatic or infant, to be the special guardian of the lunatic or
infant for the purpose of concurring in the case : 13 & 14 Vict. c. 35, s. 5.
And an order obtained in any case without notice to the guardian of the infant
may be discharged : 13 <& 14 Vict. c. 35, s. 6.
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SPECIAL CASE. 37
Setting down Special Oase — Entering for Argument.
" No special case in an action to whicii a married woman, infant, or person of
imsound mind is a party shall be set down for argument without leave of the Court
or a judge, the application for which must he supported by sufficient evidence that
the statements contained in such special case, so far as the same affect the in-
terest of such married wroman, infant, or person of unsound mind, are true " :
Jud. Eules, Order 34, rule 4.
And under the 13 & 14 Vict. c. 35, s. 13, if a married woman, infant, or
lunatic, is a party, notice of the motion must be given to every party to the case
in whom as executor, administrator, or trustee, any property in question therein
is, or is alleged to be, vested in trust for the married woman, infant, or lunatic ;
and also, if the application is not made by or on behalf of the married woman,
infant, or lunatic, to the married woman and her husband, or the infant, or the
lunatic and his committee, if any, as the case may be.
And under the same Act if the Court upon hearing the application is of
opinion that it is proper that the question raised should be deterinined upon the
special case, but is not satisfied that the statements contained therein, so far as
they affect the interest of the married woman, infant, or lunatic, are true, it
may direct inquiries in chambers, and upon further application being made by
motion, upon the inquiries being answered, the Court may give or refuse leave to
set down the special case : 13 & 14 Vict. c. 35, s. 13.
"Either party may enter a special case for argument by delivering to the
proper officer a memorandum of entry in the form No. 13 in the Appendix (B.) "
to the Act, " and also if any married woman, infant, or person of unsound mind
be a party to the action, producing a copy of the order giving leave to enter the
same for argument " ; Jud. Eules, Order 34, rule 5.
Amendment of Special Case.
Where after a special case had been set down an infant tenant in tail was horn,
the Court on ex parte motion discharged the order which had been made ibr set-
ting it down, and gave leave to amend by making the infant a party : Thistle-
thwaite v. Oarnier, 5 De G. & Sm. 73 ; Savage v. Snell, L. R. 11 Eq. 264.
And where one of the parties to the special case died after it had been set
down, leave was given to amend the case by making his representatives. parties :
Ainsworth v. Alman, 14 Beav. 597 ; but see Wilson v. Whately, 1 J. & H. 331,
where under such circumstances the special case was revived.
Where one of the female parries to the case married after it was set down the
order settiu" it down was discharged, leave to amend given, and to set it down
afresh: Atty v. Etough, L. E. 13 Bq. 462.
Leave has been given at the hearing to amend the special case by altering the
form of the question, and the opinion of the Court given as on the amended case,
without postponement : Dan. 5th ed. 1708 ; Bell v. Gade, 2 J. & H. 122 ; Bawsm
V. Dawson, L. B. 4 Bq. 504 ; ForshrooJc v. Forshrook, L. E. 3 Oh. 93.
Where the facts and questions stated on the special case did not enable the
Court to deterpiine the rights of parties, it has refused to make any order :
Bulkeley v. Eope, 8 De G. M. & G. 36; Pryse v. Pryse, L. E. 15 Bq. 8fi,
Future Eights.
' The Court has no jurisdiction to declare future rights on special cases : Lady
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33 SPECIAL CASE.
Langdale v. Briggs, 8 De G. M. & G. 426 ; Earl of Tyrone v. Marquis of
Waterford, 6 Jur. (N.S.) 567.
Costs.
The costs of a special case are in the discretion of the Court : 13 & 14 Vict.
0. 35, s. 18.
Unless the parties are agreed as to costs, or there is a fund in Court, it has been
held in Chancery that a question should be submitted to the Court in the case as
to the payment of costs : Blinston v. Warhurton, 2 K. & J. 400 ; 2 Jur. (N.S.)
858 ; and that unless there was a fund in Court the Court could not provide for
the costs : S. C.
But the costs have been provided for by the Court, although forming no ques-
tion in the case : Ootch v. Foster, L. E. 5 Eq. 311 ; Ootch v. Arnold, 18 W. E.
540; Bamahy v. Tassel, 19 W. E. 323 ; Earl Cowley v. Welleshy, 35 Beav. 635.
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CHAPTER VIII.
TEANSFEES AND CONSOLIDATION.
TraTisfer from one Division to another.
Upon motion, &o., and upon hearing counsel for, &c., and upon reading
an affidavit of, &c., Let this action, commenced in the — Division of
this Court, be transferred to the — Division of this Court, if the
President thereof consents. Let the costs of this application be costs ,
in the action.
Transfer from one Court to another Court of same Division — Consent
Order — Non-attenddble Petition.
Upon the petition, &c., referred unto the Eight Hon. the Lord
High Chancellor of Great Britain, and the solicitors of — having
subscribed the said petition signifying their consent to the prayer
thereof, Let this action, &c.
" If any pit or petitioner shall at any time assign his cause or matter to any
Division of the said High Court to which, according to the Eules of Court or the
provisions of the principal Act or this Act, the same ought not to he assigned,
the Court, or any judge of the said Division, upon beiag informed thereof, may on
a summary application at any stage of the cause or matter direct the same to he
transferred to the Division of the said Court to which according to such rules or
provisions the same ought to have been assigned, or he may, if he think it expe-
dient so to do, retain the same in the Division in which the same was commenced ;
and all steps and proceedings whatsoever taken by the pit or petitioner or by any
other party in any such cause or matter, and all orders made therein by the
Court or any judge thereof before any such transfer, shall be valid and effectual
to all intents and purposes, in the same manner as if the same respectively had
been taken and made in the proper Division of the said Court to which such cause
or matter ought to have been assigned " : Judicature Act, 1875 (38 & 39 Vict,
c. 77) s. 11, sub-s. 2.
•' Any cause or matter may at any time and at any stage thereof, and either
with or without application from any of the parties thereto, be transferred by such
authority and in such manner as Eules of Court may direct, from one Division or
judge of the High Court of Justice to any other Division or judge thereof, or may
by the like authority be retained in the Division in which the same was com-
menced, although such may not be the proper Division to which the same cause
or matter ought, in the first instance, to have been assigned " : Judicature Act,
1873 (36 & 37 Vict. c. 6f>), s. 36.
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40 TRANSFERS AND CONSOLIDATION.
" Any action or actions may be transferred from one Division to another of the
High Court, or from one judge to another of the Chancery Division, by an order
of the Lord Chancellor, provided that no transfer shall be made from or to any
Division without the consent of the President of the Division '' : Jud. Rules, Order
51, rule 1.
" Any action may at any stage be transferred from one Division to another by
an order made by the Court or any judge of the Division to which the action is
assigned : Provided that no such transfer shall be made without the consent of the
President of the Division to which the action is proposed to be transferred " :' Jud.
Rules, Order 51, rule 2.
"Any action transferred to the Chancery Division or the Probate Division
shall by the order directing the transfer be directed to be assigned to one of the
judges of such Division to be named in the order " : Jud. Rules, Order 51,
rules.
" Actions in any Division or Divisions may be consolidated by order of the
Court or a judge in the manner heretofore in use in the Superior Courts of Com-
mon Law": Jud. Rules, Order 51, rule 4.
For orders consolidating actions, see Chitty's Forms, 10th Ed. p. 802.
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CHAFER IX.
ISSUES.
Questions of Fact — Common Order in Chancery,
Let tte following questions of fact be tried before this Court with-
out a jury [or, by a common jury, or special jury, of the county of —
before this Court], that is to say, &c. [state questions; and if day for
trial be fixed, add: Let the day for such trial be the — day of — . Add
any special directions for production of witnesses, (£c.J— Adjourn further
consideration. — Liberty to apply.
Questions of Fact — Patent — Specification — Evidence.
Let the tbllowing questions of fact be tried before, &o., by a special
jury of the county of — : — 1. Was the Pit J. Y. the true and first in-
ventor of the invention for which the letters patent of the — day of
— in the Pit's bill mentioned were granted to the said J. Y. 2. Was
the said invention new within the United Kingdom of Great Britain
and Ireland at the date of the said letters patent. 3. Did the' specifi-
cation enrolled in pursuance of the said letters patent particularly
describe and ascertain the nature of the said invention, and in what
manner the same was to be performed. 4. Have the Defts, Or any or
either of them, wrongfully and in contravention of the said letters
patent used the said invention.
' Let the Pit forthwith deliver to the solicitors for the Defts particu-
lars in writing of the breaches on which they intend to rely on the
trial of such questions; and Let the Defts within — days after de-
livery of the particulars of such breaches deliver to the solicitors of
the Pit particulars in writing of the objections on which the Defts
intend to rely on the trial of the same questions. Let the parties be
at liberty to re3.d the depositions and examinations made and taken in
this cause of such of the witnesses as upon the trial of the same ques-
tions shall be proved to be dead or unable to attend to be examined,
saving all just exceptions. Let the Pit and Defts respectively be at
liberty to sue out subpoenas to compel the attendance of such witnesses
as they may require to give evidence on the said trial. — Liberty to
apply. Young v. Fernie (L. C), 1 De G. J. & S. 353.
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42 ISSUES.
Similar Order — Costs of Appeal Motion.
Let the following questions of fact be tried before the Court without
a jury :—
1. Was J. H. J. the true and first inventor of the invention for
which the letters patent of the — day of — in the Pit's bill mentioned
were granted to the said J. H. J. 2. Was the said invention new
within the United Kingdom of Great Britain and Ireland at the date
of the said letters patent. 3. Did the specification filed in pursuance
of the said letters patent particularly describe and ascertain the nature
of the said invention, and in what manner the same was to be per-
formed. Let the Defts on or before the — • day of — deliver to the
solicitors of the Pit particulars in writing of the objections on which
the Defts intend to rely on the trial of the said questions. And the
Pit undertaking to give notice of motion for a decree on or before the
1 st October, 1871, Let such motion be in the paper of causes for hear-
ing after trial of the said question. Let the evidence taken at the
said trial be read and used at the hearing of the said motion for de-
cree as the parties may desire. Let the costs of the Pit and Defts of
this appeal motion be costs in the cause. Arnold v. Bradbury (L. C.),
July 20, 1871.
Question of Fact — Nuisance.
Upon motion for injunction, &c., and the Defts by their counsel
undertaking not to use any additional steam hammer on the gun
works in the Pits' bill mentioned until the hearing of their cause or
further order, and the Pits by their counsel undertaking to try the issue
hereinafter directed at Liverpool at the present assizes, and both sides
desiring a special jury. Let the following question of fact be tried
before a special jury of the county of — , that is to say : — Whether the
Defts have worked the seven ton steam hammer lately constructed and
fixed by the Defts on their premises and works situate, &c., in such a
manner as to occasion a nuisance to the Pits. — Consequential direc-
tions. Eadew v. Firth, 1 H. & M. 673.
Question of Fact — Fire Insurance.
Upon motion, &c., and this Court being desirous of having the fol-
lowing questions decided by a jury, that is to say: — 1. Whether the
fire mentioned in the 26th paragraph of the Pit's re-amended bill
happened by accident. 2. Whether the statement on statutory decla-
ration on the part of the Pit delivered to the Defts, the London and
Lancashire Fire Insurance Company, on the — day of — , and in the
19th paragraph of the answer of the said Defts firstly sot forth was a
false statement within the meaning of the 13th condition of the policy
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ISSUES. 43
of insurance dated the — day of — mentioned in the 6th paragraph
of the Pit's re-amended bill of complaint. 3. Whether the statement
or statutory declaration on the part of the Pit delivered to the Defts
the London and Lancashire Fire Insurance Company on the said 16th
of January, 1867, and in the said 19th paragraph of the answer of
the said last-named Defts secondly set forth, was a false statement
within the meaning of the 13th condition of the policy of insurance
dated the — day of — mentioned in the 9th paragraph of the Pit's
re-amended bill of complaint. 4. Whether the particular and de-
tailed account marked A. referred to in the 19th and 20th paragraphs
of the Pit's re-amended bill, and therein stated to have been delivered
by the Pit to the said Defts, the London and Lancashire Fire In-
surance Company on the 20th December, 1866, was a false statement
within the meaning of the said 13th condition of the said policy of
insurance dated 17th April, 1866. 5. Whether the Defts J. D. W.
and W. W. in the Pit's bill named, and the Pit, or some or one of
them, were or was guilty of fraud in respect of the said statement
and claim in respect of a policy of insurance dated 2nd July, 1866,
within the meaning of the said 13th condition of the said policy.
6. Whether the Deft J. D. W. and tbe Pit, or one of them, were or
was guilty of fraud in respect of the said statement and claims in
respect of the said policy of insurance dated 17th April, 1866, within
the meaning of the 13th condition of the said policy. 7. Whether
W. W. was guilty of fraud in respect of the matters in the last
issue mentioned within the meaning of the said 13th condition of the
said last-named policy. 8. Whether the transfer in the 11th para-
graph of the Pit's re-amended bill alleged to have been made by the
Deft J. D. W. to the Pit, and mentioned to bear date the — day of — ,
and also the transfer in the 12 th paragraph of the Pit's re-amended
bill alleged to have been made by the said W. W. to the Pit, and men-
tioned to bear date the 1st day of September, 1866, were respectively
fictitious and collusive. Let for that purpose a writ of summons be
sued out of Her Majesty's Court of Exchequer of Pleas by the London
and Lancashire Fire Insurance Company as Pits against the said
M. A. D. Tatton, and the said Hodges Distillery Company, Limited,
and the said J. D. W. as Defts, pursuant to the provisions of the Act
8 & 9 Vict. c. 109. Let the parties proceed to trial under the said
writ of summons in the said Court of Exchequer of P]eas, in the
county of Middlesex, in the first sittings of Easter Term, or such other
time as the Lord Chief Baron of the Court shall think fit to appoint.
Liberty to apply. Tatton v. London and Lancashire Insurance Co.,
W. N. (1868), 60.
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44 ISSUES.
Question of Fact — Devisavit vel non — Special Jury.
This Court being desirous of having the following question of fact
decided by a jury, that is to say : — "Whether the paper writing dated,
&c., in the pleadings mentioned, purporting to be the will of — , &c.,
is or is not the last will and testament of the said — , Let for the pur-
pose of trying such question a writ of summons be sued out, &c., by
the Pits against the Deft J. E. T. C. and M. his wife. And Let the
parties proceed to trial under the said writ of summons at the next
assizes to be holden in and for the county of — , or such other time as
the Lord Chief Justice of that Court shall appoint, before a special
jury. And in case a sufficient number of special jurymen shall not
attend, either side is to be at liberty to pray a tales, but such trial is
not to be had with less than eight special jurymen, unless by consent.
And in case the said jury shall find any special matter, the same is to
be indorsed on the postea. — The Deft T. T. by his counsel disclaiming
all interest, &c., bill dismissed as against him with costs, to be taxed
and paid, &c. — ^Further consideration adjourned until after the said
trial. — Liberty to apply. Boyse v. Golclough, cited 1 Kay, 75 ; Seton,
975.
Issxie as to Validity of Bond.
Let the Pit and Deft proceed to a trial at the next assizes to be
holden for the county of — , or such other time as the judges of those
assizes shall appoint, upon the following question, namely : — 1. Whether
the bond and warrant of attorney dated, &c., were fraudulently
obtained from the Pit by means of false representations or improper
concealment on the part of — , the four obligors in the bond, or any or
either of them. And the Pit here is to be Pit at law, and the Defts
J. M. and E. M. are to be Defts at law. Let a writ of summons be sued
out to try the said issue. Parker v. Morrell, as varied on appeal, 2 Ph.
453.
Verdict indorsed on Postea — Agreement — Jury summoned.
Afteewaeds, on the — day of — and — day of — , and on this day
came the parties within named by their solicitors, and a jury of the
county of — being summoned also came, and tie jurors named in the
schedule hereto being sworn to try the question between the parties
upon their oath say, " That the Deft B. did make or enter into, or
give authority to make or enter into, the alleged agreement in the
pleadings mentioned, dated, &c." Beyer v. Tonibs (V.-C. W ) Jan 15
1864.
Verdict on Postea— Patent — No Jury.
Afterwards, on the — day of — and 4th June, 1869, came the
parties within named by their solicitors, when this Court finds ;—
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1. That the invention, the subject of the within mentioned letters
patent was at the date of the said letters patent new within the
United Kingdom. 2. That such invention was an invention of
public utility. 3. That such invention was a proper subject for letters
patent to be granted to protect it. 4. That the specification enrolled
pursuant to the said letters patent does particularly describe and
ascertain the nature of the said invention, and in what manner the
same is to be performed, pursuant to the proviso in that behalf in the
said letters patent contained. 6. That there has not been an infringe-
ment of the said letters patent by the Deft. Parkes v. Stevens ( V.-C. J.),
1869.
Verdict on Postea — Tales prayed and Jury discharged without giving
Verdict.
Afteewaeds on the — day of — , and this day at Lincoln's Inn, in
the county of Middlesex, before the Vice-Chancellor — , came as well
the within-named Defts by their solicitors, and a jury of the said
county being summoned, some of them, that is to say the jurors named
in the first part of the schedule hereto, come and are sworn upon
that jury, and because the residue of the jurors of the same jury
do not appear therefore others of the bystanders being chosen by the
sheriff of the said county at the request of the Pit, and by command of
the said Vice-Chancellor, are appointed anew, whose names are
annexed to the within written panel, according to the form of the
statute in that case made and provided, which said jurors so appointed
anew, that is to say the jurors named in the second part of the said
schedule, being called likewise come, who together with the said
other jurors being impanelled and sworn, being sworn to try the
matter in question between the said parties, and after having retired
to consider their verdict at twelve o'clock at noon and returning into
Court at a quarter to four o'clock in the afternoon, and stating that
they were not agreed on tlieir verdict, and there was no possibility of
their doing so, such jury are by the direction of the said judge, and
counsel for the respective parties not opposing, discharged from giving
any verdict on the said questions to be tried by them. Davenport v.
Jepson (V.-C. W.), Jan. 31, 1863.
Verdict on Postea after Order for New Trial — Deft not appearing.
Afteewaeds by an order made in this cause dated, &c., it was
ordered that the questions of fact directed to be tried by the order
made in this cause dated the — day of — , should be agaiti tried on
the — day of — before this Court before a special jury of the county
of Middlesex; and by another order dated the — day of — it was
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46 ISSUES.
ordered that the said question should be so tried on this day; and on
this day accordingly at — , in the county of — , before, &c., came the
Pits by their counsel (no one appearing for the Defts), and a special
jury of the saidcounty of Middlesex, whose names appear in the schedule
hereto, who being sworn to try the matter in question between the
said parties, upon their oath say : That, &o.
Order for New Trial — Jury having been discharged.
Wheeeas by an order dated, &c., it was ordered that the following
questions of fact should be tried on the — day of — , before this Court
before a special jury of the county of — , that is to say [statement of
questions of fact]. Now upon motion this day made unto this Court
by counsel for the Pits it was alleged that such trial was accordingly
had before this Court and the said special jury on the — days of — ,
and in consequence of the said jury not agreeing the said jury were
discharged by this Court without giving any verdict, and that the
Plaintiffs are desirous that the same question should again be tried
before this Court befoie a special jury of the county of — , and upon
reading the said order dated, &c., and an affidavit, &c., this Court doth
order that the same questions of fact directed to be tried by the said
order dated, &c., be again tried on the — day of — before this Court
before a special jury of the said county of — . Davenport v. Jephson,
(V.-C. W.), March 14, 1863.
Order for New Trial — Appeal Motion — Evidence.
Upon motion by way of appeal from an order dated 16th December,
1869, and upon reading an order dated 12th June, 1869, whereby it
was ordered that the questions of fact therein mentioned should be
tried by a special jury of the county of Middlesex before, &c., and the
record for trial with the indorsement thereon, whereby it appears that
the said questions of fact were tried as by the said order directed, and
the jury found for the Pit on all the several questions ; and upon read-
ing the particulars of breaches delivered by the Pits pursuant to the
said order of the 12th of June, 1869, and the notice of objections and
amended notice of objections respectively delivered by the Deft pur-
suant to the said order, and such of the several specifications and
documents referred to in the said notices of objections as are men-
tioned in the schedules hereto, and upon reading an order dated, &c.,
giving leave to the Deft to amend his notice of objections, and the
letters of patent, specification, and disclaimer 'referred to in the said
order ; and which said particulars of breaches and notices of objection
are respectively identified by the signature of the Eegistrar and filed
in the report office of this said Court, Let the order of the 16th.of
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ISSUES. 47
December, 1869, be discharged, and the parties proceed to a new trial
of the said questions of fact mentioned in the said order dated the 12th
of June, 1869, in the manner directed by that order. Garrington v.
Nuttall (V.-C. W.), Jan. 28, 1870.
Decree after Trial of Issues.
Upon motion for judgment this day made unto this Court by
counsel for the Pit in the presence of counsel for the Defts [or, if some
of the Defts do not appear : no one appearing for the Defts E. F. and
G. H., although they were duly served with notice of trial, as by
the affidavit of — , filed the — day of — , appears], and the parties
having on the — day of — proceeded to a trial of the questions di-
rected to be tried, &c., when this Court [or — ], found, &c., and upon
leading, &c., this Court doth declare, &c. and this Court doth order
and adjudge, &c.
Issues.
" Where in any action it appears to a judge that the statement of claim or de-
fence or reply does not sufficiently define the issues of fact in dispute between the
parties, he may direct the parties to prepare issues, and such issues shall, if the
parties differ, be settled by the judge " : Jud. Rules, Order 26.
" The Court or a judge may, if it shall appear- desirable, direct a trial without a
jury of any question or issue of fact, or partly of fact and partly of law, arising in
any cause or matter which previously to the passing of the Act could, without
any consent of parties, be tried without a jury " : Jud. Rules, Order 36, rule 26.
" The Court or a judge may, if it shall appear either before or at the trial that
any issue of fact can be more conveniently tried before a jury, direct that such
issue shall be tried by a judge with a jury" : Jud. Rules, Order 36, rule 27.
See " 'fBiAL," p. 59.
Under the 25 & 26 Vict. c. 42, whenever any relief or remedy within the juris-
<liction of the Court of Chancery was sought in any cause or matter, and whether
the title to such relief is or is not incident to or dependent upon a legal right, every
question of law or fact cognizable in a Court of Common Law, on the deter-
mination of which the title to such relief or remedy depends, might have been
determined by or before the Court of Chancery with or without a special or
common juiy : 25 & 26 Vict. c. 42, s. 1.
And whenever the Court considered that any question of fact might under the
particular circumstances of the case be more conveniently tried by a jury at the
assizes, or at any sitting in London or Westminster for trial of issues at common
law, it might direct an issue to try such question ; and subject to such general
orders, if any, as may be made in relation thereto, the former practice of the Court
in reference to the trial of issues was to prevail in reference to the trial of any issue
so directed : 25 & 26 Vict. c. 42, s. 2 ; see also 21 & 22 Vict. c. 27, ss. 3, 6.
The party supporting the afiSrmative of the question to be' tried is usually
directed to be the pit in the issue, but the Court will direct any other party to be
pit in law if the issue can be thus more conveniently raised : Dan. 5th ed. 980 ;
Chapman v. Smith, 2 Ves. 506, 516.
Where the pit dechned to try the issues directed, an order was made giving
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48 ISSUES.
liberty to certain creditors who had proved their debts in the suit to be substituted
for the pit, for the purpose of trying the issues, upon giving security for costs :
Elliott V. Ince, 7 De G. M. & G. 475, 489, n.
Where an issue had been directed to try whether a deed was a valid deed, and
the Court had ordered the deft to admit on the trial the due execution of the deed
(the execution having been proved in the cause), it was held on appeal that the
direction as to the admission was inconsistent with the form of issue : Elder ton
V. Luch, 2 Ph. 680.
So, too, on a bill to restrain the continuance of a trespass, the Court, in putting
the pit to his action, will not require the deft to admit any fact, but enters into
the question of trespass, unless the fact be clearly admitted by the deft : Duke of
Beaufort v. Morris, 2 Ph. 683.
The common order for production of documents is not sufficient for the pro-
duction of the documents at the trial : Marsh v. Sibbald, 2 V. & B. 275. The
production at the trial must be specially ordered, and usually forms part of the
order directing the issue : Dan. 5th ed. 982.
Where the parties require a special jury, it should be so stated in the order ;
but no special direction is required to enable the parties to pray for a tales :
Lovett V. Lovett, 2 Jur. (N.S.) 1130.
The Court will order the production at the trial of all documents by the parties
which the Court may think necessary : Dan. 5th ed. 982. But an order will not
be made to read at a trial of an issue between persons, all of whom were not
parties to the record, depositions which were taken between persons who were
parties to the record : Johnston v. Todd, 3 Beav. 218.
If the pit in the issue made default in proceeding to trial at the time appointed,
the issue might, upon the motion of the deft, have been ordered to be taken pro
confesso against the pit in the issue : Dan. 5th ed. 983, citing Bearhlock v. Tyler,
1 Jac. & W. 225 ; Powell v. Wood, 1 Buss. & My. 354 ; Cashome v. Barsham,
5 My. & Cr. 113.
Any question of fact and any question as to the amount of damages which
were ordered to be tried by a jury before the Court itself, or before the Court
itself without a jury, were reduced into writing in such form as the Court
directed ; and at the trial the jury were sworn to try the said question, and a
true verdict to give thereon according to the evidence : 21 & 22 Vict. c. 27, ss.
4,5.
The provisions with reference to the trial of questions of fact under the
21 & 22 Vict. c. 27, applied to the determination of questions of fact under the
25 & 26 Vict. c. 42 : see sect. 3.
Any question of fact or any question as to the amount of damages which in
any suit or proceeding was directed by any order to bo tried by a jury before the
Court itself, or before the Court itself without a jury, was reduced into writing
and copied on parchment by the pit, or such person as the Court should direct, or
by the solicitor for such pit or person, and was called the " Record for Trial ;" and
the same was filed with the clerk of records and writs within three days after
such order had been pa.ssed and entered; and within three days after such
filing as aforesaid the same was entered for trial: see Cons. Ord. 41, rule 26;
Gen. Ord. March 6, 1860.
On the day appointed for any trial, and previously to the commencement
thereof, the record for trial, witli the return and jury panel (if any) annexed
thereto, shall be transmitted by the clerk of records and writs to the registrar
of the Court in attendance ; and a copy thereof shall be left for the judge before
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whom such trial is appointed to be had, by the person at whose instance the same
may have been entered for trial : Cons. Ord. 41, rule 41.
Upon production to the registrar of a certificate of the clerk of records and
writs that the " Eecord for Trial " has been filed, the same was set down for
trial in the cause-hook of the judge to whose Court the suit or proceeding is
attached, and marked " Trial by Jury," or " Trial before the Court without a
Jury," as the case might be ; and either party might apply to the Court to fix a
day for such trial : Cons. Ord. 41, rule 28.
But these provisions as to the record for trial and setting down for trial are
aficcted by the Judicature Act Eules : See TeiaIj, p. 59.
Jury — Common Jury — Special Jury — Form of Oath.
21 & 22 Vict. c. 27 ; 25 & 26 Vict. c. 42.
The jury to be summoned under the 21 & 22 Vict. c. 27, and 25 & 26 Vict,
c. 42, consisted of persons possessing the qualifications, and were balloted for
and called in like manner as if such jury were a jury for the trial of any cause in
any of the Superior Courts : 21 & 22 Vict. c. 27, s. 3.
Where the Court shall order the question or questions to be tried by a special
jury, a direction to that effect shall he contained in the order directing such trial :
Cons. Ord. 41, rule 27.
There is no appeal from the order directing the trial by a special jury : Schruh-
sole V. Schneider, 12 W. E. 359.
Where the trial is to take place by a common jury before the Court itself, the
pit or such person as aforesaid, ten days at least before the day fixed for such
trial, shall obtain on motion or petition as of course, and serve on the sheriff, or if
he Is interested in the matter in question, then upon the coroner, an order for
such sheriff or coroner to summon a common jury for such trial, which order shall
be in the form set forth in Schedule N., No. 3, Cons. Ord. 41, rule 29.
Where the Court shall have specially directed the questions to be tried by a
special jury, the pit or such other person as aforesaid shall ten days at least
before the day fixed for trial obtain on motion or petition as of course, and serve
on the sheriff or coroner as aforesaid, and on the opposite party, an order for a
special jury, which order shaU be in the form set forth in Schedule (N.) No. 4 ;
and the expense of such special jury shall in the first instance be borne and paid
by the pit or such other persons as aforesaid, but shall afterwards be paid and
borne as the Court shall direct : Cons. Ord. 41, rule 30.
Where the Court shall not have specially directed the questions to be tried by
special jury, either party may obtain on motion or petition of course an order for
a special jury, and shall serve the same on the opposite party twelve days at least,
and on the sheriff or coroner ten days at least, before the day fixed for trial ; and
the expense of such special jury shall in the first instance be borne by the party
obtaining the same ; but if the Court upon such trial shall be of opinion that it
was proper that such trial should be had by a special jury, the Court may give
such directions as to the costs thereof as it shall think fit : Cons. Ord. 41, rule 31,
Where an order shall have been made for a special jury, such sheriff or coroner
shall, in addition to the special jury, summon twelve common jurymen for such
trial, in order that in the event of a sufficient number of special jurors not being
in attendance to make a jury, a tales may be directed by the Court or prayed for
by either party : Cons. Ord. 41, rule 32.
E
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The order for any such common or special jury as aforesaid shall be returned by
such sheriff or coroner to the solicitor or- person who shall have lodged the same,
together with his return and the jury panel ; and such order and jury panel shall,
two days at least before the day of trial, be left with the clerk of records and writs
to be annexed to the record for trial : Cons. Ord. 41, rule 33.
Where the trial shall have been specially directed by the Court to be by a
special jury, then in the event of there not being a sufficient number of special
jurymen in attendance to make such jury, it shall be in the discretion of the
Court whether or not to have such jury made up from the common jurymen in
attendance : Cons. Ord. 41, rule 34.
Where a special jury shall have been summoned at the instance of either party,
without the special direction of the Court, then in the event of a sufficient number
of special jurymen not being in attendance to make such jury, the same shall,
unless the Court shall otherwise direct, be made up from the common jurymen in
attendance, on the application of either party : Cons. Ord. 41, rule 35.
As to mode of nominating and reducing a special jury, see Dan. 5th ed. 951 ;
Chitty's Archbold, 366, 367 ; 33 & 34 Vict. c. 77, s. 17.
The jurors shall be called by the registrar of the Court, and the oath shall be
administered to them by such registrar, and shall be in the form set forth in the
Schedule (N.) No. 7. The witnesses shall be called by the usher of the Court :
and the oath or declaration (as the case may be) shall be administered by the
registrar of the Court to the witnesses, and shall be in the form set forth in the
same schedule, Nos. 8 or 9 : Cons. Ord. 41; rule 42.
Form of Oath to a Juror. "Tou shall well and truly try the
question [or, questions] between the parties, and a, true verdict give
according to the evidence. So help you God ": Schedule (N.) No. 7.
Form of. Oath to a Witness. " The evidence you shall give to the Court
and jury [or, the Court, as the case may 6e] touching the matters in
question shall be the truth, the whole truth, and nothing but the truth.
So help you God: Schedule (N.) No. 8. Form of Oath to Witness
having conscientious Objection to take an Oath: " I (A. B.) do solemnly,
sincerely, and truly affirm and declare that the taking of any oath is,
according to my religious belief, unlawful. And 1 do also solemnly
and truly affirm and declare that the evidence I shall give to the Court
and jury [or, the Court, as the case may be] shall be the truth, the whole
truth, and nothing but the truth:" Schedule (N.) No. 9. Form of
Oath to be tahen by the Usher of the. Court, on Jury retiring to consider
their Verdict: " You shall well and truly keep this jury in some private
and convenient place, without meat, drink, or fire (candle light excepted).
You shall not suffer any person to speak to them, neither shall you
speak to them yourself, without leave of the Court, except to ask them
if they are agreed on their verdict": Schedule (N.) No. 10.
As to persons exempted from serving on juries, the qualification of jurors and
special jurors, and as to challenges, see Dan. 5th ed. 958.
Verdict.
When the jury return to their box their names are called over by the registrar,
and the questions put: 1. "Gentlemen of the jury, are you agreed upon vour
verdict?" 2. " How do you find ?»
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ISSUES. 51
" The verdict or fipding of the jury, or of the Court, as the case may be, shall
be indorsed by the registrar on the record for trial, and signed by him, and then
returned to the office of the clerks of records and writs to be filed, and if the trial
shall have been by a jury, then with the jury panel and the names of the jurors
indorsed thereon " : Cons. Ord. 41, rule 45.
Order for View by Jury.
Upon the application, &c.. It is ordered that the sheriff of — do
cause the place in question to he shewn to six or more of the jury [or
if a special jury, say : six or more of the first twelve jurors] summoned
and impanelled to try the question \_or, questions] between the said
parties, or as many more of such jurors as he shall think fit, in order
that they may take a view of the place in question on the — day of —
next, at — o'clock in the forenoon of the same day ; and that the said
jurors do meet at the house of S. P., known by the name or sign of
— , at — , in the county of — , and then and there be refreshed at the
equal charge of the said parties ; and that S. P. on the part of the Pit
[or, petitioner], and S. D. on the part of the Deft [or, respondent], do
shew the place in question to those jurors; but that no evidence be
then and there given to the said jurors. And it is ordered that the
sheriff of — do return the names of such of the said jurors as shall
view the said place to the registrar in the Court of Chancery, for the
purpose of their being called as jurymen upon the trial of the said
question [or, questions]. And it is ordered that the Pit [or, Deft, or,
petitioner, or, respondent], his solicitor or agent, do deposit in the
hands of the under-sheriff of the said coupty the sum of £ — for pay-
ment of the expenses of the same view, pursuant to the general order
of Court in that behalf made; and that if such sum shall be more
than sufficient to pay the expenses of the said view, the surplus be
forthwith returned to the Pit's [or, Deft's, or, petitioner's, or, respon-
dent's] solicitor ; and if such sum shall not be sufficient to pay such
expenses, the deficiency be paid forthwith by such solicitor to the said
under-sheriff; the Pit [or. Deft, or, petitioner, or, respondent] by his
solicitor consenting that in case no view shall be had, or if a view
shall be had by any of the said jurors, whether they shall happen to be
six, or any particular number of the jurors who shall be mutually con-
sented to, yet the 'said trial shall proceed, and no objection shall be
made on account thereof. Cons. Ord. 4, Schedule (N.) No. 5.
Either party shall be at liberty to apply by summons to a judge at chambers
for a view by the jury summoned for any trial ; and on the hearing of such sum-
mons each party shall name a shower for such view ; and any order to be made
on such application shall be in the form set forth in Schedule (N.) No. 5 : Cons.
Ord. 4.
The summons for a view and the order to be made thereon shall state the place
E 2
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52 ISSUES.
at which the view is to be made, and the distance thereof from the ofBce of the
under-sheriff. And the sum to be deposited in the hands of the under-sheriff shall
be £10 in case of a common jury and £16 in case of a special jury, if such distance
shall not exceed five miles, and £15 in case of a common jury, and £21 in case of
a special jury, if it shall be above five miles ; and if such sum shall be more than
suflScient to pay such expenses, the deficiency shall forthwith be paid by such
solicitor or party to the under-sheriff: Cons. Ord. 41, rule 37.
For scale of payments to be made by the under-sheriff, see rule 37.
The mode and practice of proceeding to nominate and reduce a special jury, and
the proceedings after any order for a view shall have been made, shall be the same
in all respects as are now or for the time being shall be in force in the superior
Courts of Common Law when a special jury is ordered to be struck or a view is to
be had, or as near thereto as the practice of this Court will admit : Cons. Ord. 41,
rule 38.
Motion foe Judgment — After Issues teied.
".Where issues" have been ordered to be tried, or issues or questions of fact to be
determined in any manner, the pit may set down the action on motion for judg-
ment as soon as such issues or questions have been determined. If he does not so
set it down, and give notice thereof to the other parties within t«n days after his
right so to do has arisen, then after the expiration of such ten days any deft may
set down the action on motion for judgment, and give notice thereof to the other
parties " : Jud. Rules, Order 40, rule 7.
Teial of Issues postponed.
" Where issues have been ordered to be tried, or issues or questions of fact to be
determined in any manner, and some only 'of such issues or questions of fact have
been tried or determined, any party who considers that the result of such trial or
determination renders the trial or determination of the others of them unneces-
sary, or renders it desirable that the trial or determination thereof should be
postponed, may apply to the Comt or a judge for leave to set down the action on
motion for judgment without waiting for such trial or determination. And the
Court or judge may, if satisfied of the expediency thereof, give such leave, upon
such terms, if any, as shall appear just, and may give any directions which may
appear desirable as to postponing the trial of the other questions of fact " : Jud.
Eules, Order 40, rule 8.
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CHAPTER X.
PEOCEEDINGS IN DISTKICT EEGISTEIBS.
Eegisteies, how established.
DisTKiCT registries may be established by Orders in Council, from which writs
of summons for the commencement of actions in the High Court of Justice may
be issued, &c. See Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 60 ; Judicature
Act, 1875 (38 & 39 Vict. o. 77), ss. 13, 61 ; Orders in Council, August 12, 1875.
Powers of District Eegisteaes.
" All such district registrars shall have power to administer oaths and perform
such other duties in respect of any proceedings pending in the said High Court of
Justice or in the said Court of Appeal as may be assigned to them from time to
time by Eules of Court, or by any special order of the Court " : Judicature Act,
1873 (36 & 37 Vict. c. 77), s. 62.
Peoceedings which may be taken.
" Subject to the Eules of Court (infra) in force for the time being, writs of
summons for the commencement of actions in the High Court of Justice shall be
issued by the district registrars when thereunto required ; and unless any order
to the contrary shall be made by the High Court of Justice, or by any judge
thereof, all such further proceedings, including proceedings for the arrest or deten-
tion of a ship, her tackle, apparel, furniture, cargo, or freight, as may and ought
to be taken by the respective parties to such action in the said High Court down
to and including entry for trial, or (if the pit is entitled to sign final judgment or
to obtain an order for an account by reason of the non-appearance of the deft)
down to and including final judgment, or an order for an account may be taken
before a district registrar, and recorded in the district registry in such manner as
may be prescribed by Eules of Court, and all such other proceedings in any such
action as may be prescribed by Eules of Court shall be taken, and if necessary
may be recorded in the same district registry " : Judicature Act, 1873 (36 & 37
Vict. c. 77), s. 64.
As to issue of summons and appearance : see Jud. Eules, Order 5, rule 1 ;
Order 12, rules 1 to 5 ; ante, p. 5.
Proceedings up to Trial.
"Where an action proceeds in the district registry all proceedings, except
where by these rules it is otherwise provided, or the Court or a judge shall other-
wise order, shall be taken in the district registry, down to and including the
entry for trial of the action or issues therein ; or if the pit is entitled to enter final
judgment or to obtain an order for an account by reason of the default of the
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54 PROOBBDINGS IN DISTRICT REGISTRIES.
deft, then down to and including such judgment or order ; and such judgment or
order as last aforesaid shall be entered in the district registry in the proper book,
in the same manner as a like juda;ment or order in an action proceeding in Lon-
don would be entered in London. "Where the writ of summons is issued out of
a district registry and the pit is entitled to enter interlocutory judgment under
Order 13, rule 6, or where the action proceeds in the district registry and the pit
is entitled to enter interlocutory judgment'under Order 29, rule 4 or 5, in either
case such interlocutory judgment, and, when damages shall have been assessed,
final judgment, shall be entered in the district registry, unless the Court or a judge
shall otherwise order.
" Where an action proceeds in the district registry final judgment shall be
entered in the district registry unless the judge at the trial or the Court or a
judge shall otherwise Order" : Jud. Rules, Order 35, rule 1.
" Subject to the foregoing rules, wliere an action proceeds in the district
registry the judgment and all such orders therein as require to be entered, ex-
cept orders made by the district registrar under the authority and jurisdiction
Tested in him under these rules, shall be entered in London, and an office copy of
every judgment and order so entered shall be transmitted to the district registry
to be filed with the proceedings in the action '' : Jud. Rules, Order 35, rule 2.
Writs op Execution — Costs — Authority of Eegisteae.
" Where an action proceeds in a district registry all writs of execution for en-
forcing any judgment or order therein shall issue from the district registry,
unless the Court or a judge shall otherwise direct. Where final judgment is
entered in the district registry costs shall be taxed in such registry unless the
Court or a judge shall otherwise order" : Jud. Rules, Order 35, rule 3.
" Where an action proceeds in the district registry the district registrar may
exercise all such authority and jurisdiction in respect of the action as may be ex-
ercised by a judge at chambers, except such as by these rules a master of the
Queen's Bench, Common Pleas, or Exchequer Divisions is precluded from exer-
cising " : Jud. Rules, Order 35, rule 4.
"Every application to a district registrar shall be made in the same manner in
which applications at chambers are directed to be made by these rules " : Jud.
Rules, Order 35, rule 5.
Eeferenoes and Appeal to the Judge.
" If any matter appears to the district registrar proper for the decision of a
judge, the registrar may refer the same to a judge, and the judge may either dis-
pose of the matter or refer the same hack to the registrar with such directions as
he may think fit " : Jud. Rules, Order 35, rule 6.
"Any person affected by any order or decision of a district registrar may
appeal to a judge. Such appeal may be made notwithstanding that the order or
decision was in respect of a proceeding or matter as to which the district regis-
trar had jurisdiction only by consent. Such appeal shall be by summons within
four days after the decision complained of, or such further time as may be allowed
by a judge or the registrar " : Jud. Rules, Order 35, rule 7.
" An appeal from a district registrar shall be no stay of proceedings unless so
ordered by a judge or the registrar" : Jud. Rules, Order 35, rule 8.
" Every district registrar and other officer of a district registry shall be subject
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PROCEEDINGS IN DISTRICT REGISTRIES. 55
to the orders and directions of the Court or a judge as fully as any other officer of
the Court, and every proceeding in a district registry shall be subject to the con-
trol of the Court or a judge, as fully as a like proceeding in London " ; Jud. Rules
Order 35, rule 9.
" Every reference to a judge by or appeal to a judge from a district registrar in
any action in the Chancery Division shall be to the judge to whom the action is
assigned " : Jud. Rules, Order 35, rule 10.
Removal of Action from Disteict Resistet.
" In any action which would, under the foregoing rules, proceed in the district
registry, any deft may remove the action from the district registry as of right
in the cases, and within the times, following :
" Where the writ is specially indorsed under Order 3, rule 6, and the pit does
not within four days after the appearance of such deft give notice of an
application for an order against him under Order 14 ; then such deft may
remove the action as of right at any time after the expiration of such four
days, and before delivering a defence, and before the expiration of the
time for doing so :
" Where the writ is specially indorsed and the pit has made such application
as in the last paragraph mentioned, and the deft has obtained leave to
defend in manner provided by Order 14 ; then such deft may remove the
action as of right at any time after the order giving him leave to defend,
and before delivering a defence and before the expiration of the time for
doing so :
" Where the writ is not specially indorsed any deft may remove the action as
of right at any time after appearance, and before delivering a defence, and
before the expiration of the time for doing so " : Jud. Rules, Order 35,
rule 11.
" Any deft desirous to remove an action as of right under the last preceding
rule may do so by serving upon the other parties to the action, and delivering
to the district registrar, a notice, signed by himself or his solicitor, to the effect
that he desires the action to be removed to London, and the action shall be re-
moved accordingly : Provided, that if the Court or a judge shall be satisfied that
the deft giving such notice is a merely formal deft, or has no substantial cause to
interfere in the conduct of the action, such Court or judge may order that the
action may proceed in the district registry notv^ithstanding such notice " : Jud.
Rules, Order 35, rule 12.
" In any case not provided for by the last two preceding rules, any party to an
action proceeding in a district registry may apply to the Court or a judge, or to
the district registrar, for an order to remove the action from the district registry
to London, and such Court, judge, or registrar, may make an order accordingly, if
satisfied that there is suflBcient reason for doing so, upon such terms, if any, as
shall seem just.
" Any party to an action proceeding in London may apply to the Court or a
judge for an order to remove the action from London to any district registry, and
such Court or judge may make an order accordingly, if satisfied that there is suffi-
cient reason for doing so, upon such terms, if any, as shall seem just " : Jud.
Rules, Order 35, rule 13.
" Whenever any proceedings are removed from the district registry to London,
the district registrar shall transmit to the proper ofiScer of the High Court of
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56 PROCEEDINGS IN DISTEICT EEGISTEIES.
Justice all original documentsB (if any) filed in the district registry, and a copy of
all entries in the books of the district registry of the proceedings in the action " :
Jud. Rules, Order 35, rule 14.
Production of Docxtments — Accounts.
" It shall be lawful for the Court, or any judge of the Division to which any
cause or matter pending in the said High Court is assigned, if it shall be thought
fit, to order that any books or documents may be produced, or any accounts taken
or inquiries made in the ofBce of or by any such district registrar as aforesaid ;
and in any such case the district registrar shall proceed to carry all such direc-
tions into effect in the manner prescribed ; and in any case in which any such
accounts or inquiries shall have been directed to be taken or made by any district
registrar, the report in writing of such district registrar as to the result of such
accounts or inquiries may be acted upon by the Court as to the Court shall seem
fit" : Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 66.
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CHAPTER XI.
ADMISSIONS.
Notice of — Costs — Foem of Notice.
" Any party to an action may give notice, by his own statement or otherwise,
that he admits the truth of the whole or any part of the case stated or referred to
in the statement of claim, defence, or reply, of any other party " : Jud. Enles,
Order 32, rule 1.
" Either party may call upon the other party to admit any document, saving
all just exceptions ; and in case of refusal or neglect to admit, after such notice,
the costs of proving any such document shall be paid by the party so neglecting
or refusing, vrhatever the result of the action may be, unless at the hearing or
trial the Court certify that the refusal to admit was reasonable ; and no costs of
proving any document shall be allowed unless such notice be given, except where
the omission to give the notice is, in the opinion of the taxing master, a saving of
expense '' : Jud. Eules, Order 32, rule 2.
A notice to admit documents may be in tha Form No. 12 in Appendix (B.)
to the Act : Jud. Eules, Order 32, rule 3.
Form above referred to.
In the High Court of Justice,
Division.
A. B. V. C. D.
Take notice that the pit [or, deft] in this case proposes to adduce in
evidence the several documents hereunder specified, and that the same
may be inspected by the deft [or, pit], his solicitor, or agent, at — ,
on — , between the hours of — ; and the deft [or, pit] is hereby re-
quired, within forty-eight hours from the last-mentioned hour, to admit
that such of the said documents as are specified to be originals were
respectively written, signed, or executed as they pui-port respectively
to have been ; that such as are specified as copies are trae copies ; and
such documents as are stated to have been served, sent, or delivered,
were so served, sent, or delivered respectively ; saving all just excep-
tions to the admissibility of all such documents as evidence in this
cause.
Dated, &c.
To B. P., solicitor [or, agent] for deft [or, pit].
Gr. H., solicitor [or, agent] for — .
" An affidavit of the solicitor in the cause, or his clerk, of the due signature of
any admissions made in pursuance of any notice to admit documents, and annexed
to the affidavit, shall be sufficient evidence of such admissions " : Jud. Eules,
Order 32, rule 4.
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58 ADMISSIONS.
As regards admissions on the record, it has been the general rule at common
law that a bill in Chancery under the former practice would not be evidence
except to shew that such a bill did exist, and that certain facts were in issue be-
tween the parties, and it could not be admitted as evidence to prove any facts,
either alleged or denied, in the bill. In Courts of Equity a different rule has
prevailed, and the bill might have been read as evidence for the deft of any o'
the matters therein positively averred : Dan. 5th ed. 740, citing Bdleau v.
Eutlin, 2 Exch. 665 ; 2 Ph. on Evid. 37 ; Taylor on Evid. s. 786.
The answer of an infant could not have been read against him, although con-
taining admissions : Wrottesley v. Bendish, 3 P. Wms. 236.
But where a deft being an infant answered by his guardian, and at full age
neither amended nor made a new answer, but prayed a hearing of the cause
de novo, his answer was evidence against him : Hinde, 422.
The facts alleged in a bill in Chancery under the former practice, where they
were alleged positively, were admissions in favour of the deft of the facts so
alleged ; and therefore need not have been proved by other evidence : Dan. 5th ed.
739.
The pit could not read any part of his own bill as evidence in support of his
case, unless where it was corroborated by the answer : Ibid.
Where a deft refers to a document for greater certainty, he has in general a
right to insist upon the document itself bemg read : Oox v. AlUngham, Jac. 337 ;
Leit V. Morris, 4 Sim. 607, 611.
The admission of a document by a deft coupled with a reference to it for
greater certainty does not relieve the pit from the necessity of proving it :
Bowling v. Legh, 3 J. & Lat. 716.
And where, in a suit to establish a will against the heir, the heir put in his
answer admitting the will, and died before the hearing, the derivative heir,
although an infant, was held bound by the admission, and the execution of the
will was not proved : See lAvesey v. Livesey, cited 4 Sim. 132 ; Robinson v.
Cooper, 4 Sim. 131 ; Loclee v. Foote, 4 Sim. 132 ; Coope v. Cresswell, L. E. 2
Oh. 112.
Where a deft in equity filed a cross bill for discovery only against the pit in
equity, or exhibited interrogatories for his examination, the answer might have
been read and used by the party filing the cross bill or exhibiting the interroga-
tories in the same manner and under the same restrictions as the answer to a bill
praying relief might have been read and used : Cons. Order, 19, rule 6.
Although a deft could not read his own answer as evidence for himself as to
any other point than that of costs, he was entitled to have the benefit of his
answer, so far as it amounted to a denial of the pit's case, unless the denial by the
answer was contradicted by the evidence of more than one witness : Dan, 5th ed.
744, and cases there cited.
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CHAPTER XII.
TRIAL— EVIBENCE— MOTION FOE JUDGMENT.
Place of Teial— Mode of Trial.
" There shall be no local vemie for the trial of any actioc, but when the pit
proposes to have the action tried elsewhere than in Middlesex,. he shall in his
statement of claim name the county or place in which he proposes that the action
shall be tried, and the action shall, unless a judge otherwise orders, be tried in
the county or place so named. Where no place of trial is named in the statement
of claim, the place of trial shall, unless a judge otherwise orders, be the county of
Middlesex. Any order of a judge as to such place of trial may be discharged or
varied by a Divisional Court of the High Court" : Jud. Eules, Order 36, rule'l.
" Actions shall be tried and heard either before a judge or judges, or before a
judge sitting with assessors, or before a judge and jury, or before an official or
special referee, with or without assessors " : Jud. Eules, Order 36, rule 2.
" Subject to the provisions of the following rules, the plaintiff may, with his
reply, or at any time after the close of the pleadings, give notice of trial of
the action, and thereby specify one of the modes mentioned in rule 2 ; and the
defendant may, upon giving notice within four days from the time of the service
of the notice of trial, or within such extended time as a Court or judge may
allow, to the effect that he desires to have the issues of fact tried before a judge
and jury, be entitled to have the same so tried " : Jud. Eules, Order 36, rule 3.
" Subject to the provisions of the following rules, if the pit does not within
six weeks after the close of the pleadings, or within such extended time as a
Court or judge may allow, give notice of trial, the deft may, before notice of trial
given by the pit, give notice of trial, and thereby specify one of the modes men-
tioned in rule 2 ; and in such case the pit may, on giving notice within the time
iixed by rule 3 that he desires to have the issues of fact tried before a judge and
jury, be entitled to have the same so tried " : Jud. Eules, Order 36, rale 4.
" In any case in which neither the pit nor deft has given notice under the pre-
ceding rules that he desires to have the issues of fact tried before a judge and
jury, or in any case within the 57th section of the Act, if the pit or deft desires
to have the action tried in any other mode than that specified in the notice of
trial, .he shall apply to the Court or a judge for an order to that effect, within four
days from the time of the service of the notice of trial, or within such extended
time as a Court or a judge may allow " : Jud. Eules, Order 36, rule 5.
" Subject to the provisions of the preceding rules, the Court or a judge may,
in any action at any time or from time to time, order that different questions of
fact arising therein be tried by different modes of trial, or that one or more ques-
tions of fact be tried before the others, and may appoint the place or places for
such trial or trials, and in all oases may order that one or more issues of fact be
tried before any other or others " : Jud. Eules, Order 36, rule 6.
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60 TEIAL—EVLDENCB— MOTION FOR JUDGMENT.
" Every trial of any question or issue of fact by a jury shall be held before a
single judge, unless such trial be specially ordered to be held before two or more
judges " : Jud. Rules, Order 36, rule 7.
Notice of Trul,
" Notice of trial shall state whether it is for the trial of the action or of issues
therein ; and in actions in the Queen's Bench, Common Pleas, and Exchequer
Divisions, the place and day for which it is entered for trial. It may be in the
Form No. 14 in Appendix (B.), with such variations as circumstances may
require " : Jud. Eules, Order 36, rule 8.
" Ten days' notice of trial shall be given, unless the party to whom it is. given
has consented to take short notice of trial ; and shall be sufficient in all cases,
unless otherwise ordered by the Court or a judge. Short notice of trial shall be
four days' notice " : Jud. Eules, Order 36, rule 9.
" Notice of trial shall be given before entering the action for trial " : Jud. Rules,
Order 36, rule 10.
" Notice of trial for London or Middlesex shall not be or operate as for any
particular sittings ; but shall be deemed to be for any day after the expiration of
ths notice on which the action may come on for trial in its order upon the list":
Jud. Eules, Order 36, rule 11.
" Notice of trial elsewhere than in London or Middlesex shall be deemed to be
for the first day of the then next assizes at the place for which notice of trial is
given " : Jud. Rules, Order 36, rule 12.
" No notice of trial shall be countermanded, except by consent, or by leave of
the Court or a judge, which leave may be given subject to such tenns as to costs,
or otherwise, as may be just " : Jud. Rules, Order 36, rule 13.
" If the party giving notice of trial for London or Middlesex omits to enter the
action for trial on the day or day after giving notice of trial, the party to whom
notice has been given may, unless the notice has been countermanded imder the
last rule, within four days enter the action for trial": Jud. Eules, Order 36,
rule 14.
" If notice of trial is given for elsewhere than in London or Middlesex, either
party may enter the action for trial. If both parties enter the action for trial, it
shall be tried in the order of the pit's entry " : Jud. Rules, Order 36, rule 15.
" The list or lists of actions for trial at the sittings in London and Middlesex,
respectively shall he prepared and the actions shall be allotted for trial without
reference to the Division of the High Court to which such actions may be
attached " : Jud. Rules, Order 36, rule 16.
" The party entering the action for trial shall deliver to the officer a copy of the
whole of the pleadings in the action, for the use of the judge at the trial. Such
copy shall be in print, except as to such parts, if any, of the pleadings as are by
these rules permitted to be written " : Jud. Eules, Order 36, rule 17.
Default at the Trial.
" If, when an action is called on for trial, the pit appears, and the deft does not
appear, then the pit may prove his claim, so far as the burden of proof lies upon
him" : Jud. Eules, Order 36, rule 18.
" If, when an action is called on for trial, the deft appears, and the pit does not
appear, the deft, if he has no counter-claim, shall be entitled to judgment dis-
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TKIAL— EVIDENCE— MOTION FOB JUDaMBNT. 61
missing the action, but if he has a counter-claim, then he may prove such claim
so far as the burden of proof lies upon him " : Jud. Rules, Order 36, rule 19.
" Any verdict or judgment obtained where one party does not appear at the
trial, may be set aside by the Court or a judge upon such terms as may seem fit,
upon an application made within six days after the trial ; such application may
be made either at the assizes or in Middlesex " : Jud. Eules, Order 36, rule 20.
" The judge may, if he think it expedient for the interests of justice, postpone
or adjourn the trial for such time, and upon such terms, if any, as he shall think
fit" : Jud. Rules, Order 36, rule 21.
Judgment — ^Leave to set aside, &c.
" Upon the trial of an action, the judge may, at or after such trial, direct that
judgment be entered for any or either party, as he is by law entitled to upon the
findings, and either with or without leave to any party to move to set aside or
vary the same, or to enter any other judgment, upon such terms, if any, as he
shall think fit to impose ; or he may direct judgment not to be entered then, and
leave any party to move for judgment. No judgment shall be entered after a
trial without the order of a Court or judge " : Jud. Eules, Order 36, rule 22.
" Upon every trial at the assizes, or at the London and Middlesex sitting of the
Queen's Bench, Common Pleas, or Exchequer Division, where the officer present
at the trial is not the officer by whom judgments- ought to be entered, the asso-
ciate shall enter all such findings of fact as the -judge may direct to be entered,
sod the directions, if any, of the judge as to judgment, and the certificates, if any,
granted by the judge, in a book to be kept for the purpose " : Jud. Rules, Order 36,
rule 23.
"If the judge shall direct that any judgment be entered for any party abso-
lutely, the certificate of the associate to that effect shall be a sufficient authority
to the proper officer to enter judgment accordingly. The certificate may be in the
Form No. 15 in Appendix (B.) " to the Act : Jud. Rules, Order 36, rule 24.
" If the judge shall direct that any judgment be'entered for any party subject
to leave to move, judgment shall be entered accordingly upon the production of
the associate's certificate " : Jud. Rules, Order 36, rule 25.
Questions of Fact and Law — Jury.
" The Court or a judge may, if it shall appear desirable, direct a trial without a
jury of any question or issue of fact, or partly of fact and partly of law, arising in
any cause or matter which previously to the passing of the Act could, without
any consent of parties, be tried without a jury " • Jud. Rules, Order 36, rule 26.
" The Court or a judge may, if it shall appear either before or at the trial that
any issue of fact can be more conveniently tried before a jury, direct that such
issue shall be tried by a judge with a jury " : Jud. Rules, Order 36, rule 27.
AssESSOKS — Commissioners — Eefeeee.
" Trials with assessors shall take place in such manner and upon such terms as
the Court or a judge shall direct " : Jud. Eules, Order 36, rule 28.
"In any cause the Court or a judge of the Division to which the cause is
assigned may, at any time, or from time to time, order the trial and determina-
tion of any question or issue of fact, or partly of fact and partly of law, by any
commissioner or commissioners appointed in pursuance of the 29th section of the
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62 TRIAL-EVIDENCE— MOTION FOR JUDGMENT.
said Act, or at the sittings to be held in Middlesex or London, and such question
or issue shall be tried and determined accordingly " : Jud. Rules, Order 36, rule 29.
" Where any cause or matter, or any question in any cause or matter, is referred
to a referee, he may, subject to the order of the Court or a judge, hold the trial
at or adjourn it to any place which he may deem most convenient, and have any
inspection or view, either by himself or with his assessors (if any), which he may
deem expedient for the better disposal of the controversy, before him. He shall,
unless otherwise directed by the Court or a judge, proceed with the trial de die in
diem, in a similar manner as in actions tried by a jury " : Jud. Rules, Order 36,
rule 30.
"Subject to any order to be made by the Court or judge ordering the same,
evidence shall be taken at any trial before a referee, and the attendance of wit-
nesses may be enforced by subpoena, and ev6ry such trial shall be conducted in
the same manner, as nearly as circumstances will admit, as trials before a judge
of the High Court, but not so as to make the tribunal of the referee a public court
of justice": Jud. Rules, Order 36, rule 31.
" Subject to any such order as last aforesaid, the referee shall have the same
authority in the conduct of any reference or trial as a judge of the High Court
when presiding at any trial before him " : Jud. Rules, Order 36, rule 32.
" Nothing in these rules contained shall authorize any referee to commit any
person to prison or to enforce any order by attachment or otherwise " • Jud.
Rules, Older 36, rule 33.
" The referee may, before the conclusion of any trial before him, or by his
report under the reference made to him, submit any question arising therein for
the decision of the Court, or state any facts specially, with power to the Court to
draw inferences therefrom, and in any such case the order to be made on such
submission or statement shall be entered as the Court may direct ; and the Court
shall have power to require any explanation or reasons from the referee, and to
remit the cause or matter, or any part thereof, for retrial, or further consideration
to the same or any other referee" : Jud. Rules, Order 36, rule 34.
Evidence.
Evidence generally.
" In the absence of any agreement between the parties, and subject to these
rules, the witnesses at the trial of any action, or at any asstssraent of damages,
shall be examined viva voce and in open court, but the Court or a judge may at
any time, for sufficient reason, order that any particular fact or facts may be
"proved by affidavit, or that the affidavit of any witness may be read at the hear-
ing or trial on such conditions as the Court or judge may think reasonable, or
that any witness whoso attendance in Court ought for some sufficient cause to be
dispensed with, be examined by interrogatories or otherwise before a commissioner
or examiner : provided that where it appears to the Court or judge that the other
party bond fide desires the production of a witness for cross-examination, and that
such witness can be produced, an order shall not be made authorizing the evidence
of such witness to be given by affidavit " : Jud. Rules, Order 37, rule 1.
" Dpon any motion, petition, or summons, evidence may be given by affidavit ;
but the Court or a judge may, on the application of either party, order the attend-
ance for cross-examination of the person making any such affidavit" : Jud. Rules,
Order 37, rule 2.
" Affidavits shall be confined to such facts as the witness is able of his own
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TRIAL— EVIDENCE— MOTION FOR JUDGMENT. 63
knowledge to prove, except on interlocutory motions, on which statements as to
his belief, with the grounds thereof, may be admitted. The costs of every affida-
vit which shall unnecessarily set forth matters of hearsay, or argumentative
matter, or copies of or extracts from documents, shall be paid by the party filing
the same " : Jud. Rules, Order 37, rule 3.
" The Court or a judge may, in a cause or matter where it shall appear neces-
sary for the purposes of justice, make any order for the examination upon oath
before any officer of the Court, or any other person or persons, and at any place,
of any witness or person, and may order any deposition so taken to be filed in the
Court, and may empower any party to any such cauge or matter to give such
deposition in evidence therein on such terms, if any, as the Court or a judge may
direct " : Jud. Rules, Order 37, rule 4.
Etidencb by Affidavit.
" Within fourteen days after a consent for taking evidence by affidavit as
between the pit and the deft has been given, or within such time as the parties
may agree upon, or a judge in chambers may allow, the pit shall file his affidavits
and deliver to the deft or his solicitor a list thereof" : Jud. Rules, Order 38,
rule 1.
" The deft within fourteen days after delivery of such list, or within such time
as the parties may agree upon, or a judge in chambers may allow, shall file his
affidavits, and deliver to the pit, or his solicitor, a list thereof": Jud. Rules,
Order 38, rule 2.
'• Within seven days after the expiration of the said fourteen days, or such
other time as aforesaid, the pit shall file his affidavits in reply, which affidavits
shall be confined to matters strictly in reply, and shall deliver to the deft or his
solicitor a list thereof" : Jud. Rules, Order 88, rule 3.
" When the evidence is taken by affidavit, any party desiring to cross-examine
a deponent who has made an affidavit filed on behalf of the opposite party, may
serve upon the party by whom such affidavit has been filed a notice in writing
requiring the production of the deponent for cross-examination before the Court
at the trial, such notice to be served at any time before the expiration of fourteen
days next after the end of the time allowed for filing affidavits in reply, or within
such time as in any case the Court or a judge may specially appoint ; and unless
such deponent is produced accordingly his affidavit shall not be used as evidence
unless by special leave of the Court. The party producing such deponent for
cross-examination shall cot be entitled to demand the expenses thereof in the first
instance from the party requiring such production " : Jud. Rules, Order 38,
rule 4.
" The party to whom such notice, as is mentioned in the last-preceding rule is
given, shall be entitled to compel the attendance of the deponent for cross-ex-
amination in the same way as he might compel the attendance of a witness to be
examined " : Jud. Rules, Order 38, rule 5.
" When the evidence in any action is under this Order taken by affidavit, such
evidence shall be printed, and the notice of trial shall be given at the same time
or times after the close of the evidence, as in other cases is by these rules pro-
vided, after the close of the pleadings " : Jud. Rules, Order 38, rule 6.
Motion foe Nev Trial.
" A party desirous of obtaining a new trial of any cause tried in the Queen's
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64 TRIAL- EVIDENCE— MOTION FOE JUDGMENT.
Bench, Common Pleas, or Exchequer Divisions, on which a verdict has been
found by a jury, or by a judge without a jury, must apply for the same to a
Divisional Court by motion for an order calling upon the opposite party to shew
cause at the expiration of eight days from the date of the order, or so soon after
as the case can be heard, why a new trial should not be directed. Such motion
shall be made within four days after the trial, if the Divisional Court is then
sitting, or within the first four days after the commencement of the sitting of the
Divisional Court next after the trial, or within such extended time as the Court
or a judge may allow ": Jud. Rules, Order 39, rule 1.
" A copy of such order shall be served on the opposite party within four days
from the time of the same being made ": Jud. Rules, Order 39, rule 2.
" A new trial shall not be granted on the ground of misdirection or of the
improper admission or rejection of evidence, unless in the opinion of the Court to
which the application is made some substantial wrong or miscarriage has been
thereby occasioned in the trial of the action ; and if it appear to such Court that
such wrong or miscarriage affects part only of the matter in controversy, the
Court may give final judgment as to part thereof, and direct a new trial as to the
other part only ": Jud. Rules, Order 39, rule 3.
" A new trial may be ordered on any question in an action, whatever be the
grounds for the new trial, without interfering with the finding or decision upon
any other question ": Jud. Rules, Order 39, rule 4.
" An order to shew cause shall be a stay of proceedings in the action, unless
the Court shall order that it shall not be so as to the whole or any part of the
action ": Jud. Rules, Order 39, rule 5.
Motion for Judgment.
" Except where by the Act or by these rules it is provided that judgment
may be obtained in any other manner, the judgment of the Court shall be
obtained by motion for judgment ": Jud. Rules, Order 40, rule 1.
" Where at the trial of an action the judge or a referee has ordered that any
judgment be entered subject to leave to move, the party to whom leave has been
reserved shall set down the action on motion for judgment, and give notice
thereof to the other parties within the time limited by the judge in reserving
leave, or if no time has been limited, within ten days after the trial. The notice
of motion shall state the grounds of the motion, and the relief sought, and that
the motion is pursuant to leave reserved ": Jud. Rules, Order 40, rule 2.
" Where at the trial of an action the judge or referee abstains from directing
any judgment to be entered, the plaintiff may set down the action on motion for
judgment. If he does not so set it down and give notice thereof to the other
parties within ten days after the trial, any defendant may set down the action on
motion for judgment, and give notice thereof to the other parties ": Jud. Rules,
Order 40, rule 3.
" Where at the trial of an action before a juiy the judge has directed that any
judgment be entered, any party may, without any leave reserved, move to set
aside such judgment, and enter any other judgment, on the ground that the
judgment directed to be entered is wrong by reason of the judge having caused
the finding to be entered wrongly, with reference to the finding of the jury upon
the question or questions submitted to them ": Jud. Rules, Order 40, rule 4.
" Where at the trial of an action the judge or a referee has directed that any
judgment be entered, any party may, without any leave reserved, move to set
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TRIAL -EVIDENCE— MOTION FOR JUDaMENT. 65
aside such judgment, and to enter any other judgment, on the ground that upon
the finding as entered the judgment so directed is wrong ": Jud. Rules, Oriier 40,
rule 6,
" On every motion made under /either of the last two preceding rules, the order
shall be an order to shew cause, and shall be returnable in eight days. The
motion shall be made within four days after the trial if the Divisional Court is
then sitting, or within the first four days- after the commencement of the sitting
of the Divisional Court next after the trial, or within such extended time as a
Court or judge may allow": Jud. Rules, Order 40, rule 6.
" Where issues have been ordered to be tried, or issues or questions of fact to
be determined in any manner, the pit may set down the action on motion for
judgment as soon as such issues or questions have been determined. If he does
not so set it down, and give notice thereof to the other parties within ten days
after his right so to do has arisen, then after the expiration of such ten days any
deft may set down the action on motion for judgment, and give notice thereof
to the other parties ": Jud. Rules, Order 40, rule 7.
" Where issues have been ordered to be tried, or issues or questions of fact to
be determined in any manner, and some only of such issues or questions of fact
have been tried or determined, any party who considers that the result of such
trial or determination renders the trial or detennination of the others of them un-
necessary, or renders it desirable that the' trial or determination thereof should be
postponed, may apply to the Court or a judge for leave to set down the action on
motion for judgment, without waiting for such trial or determination. And the
Court or judge may, if satisfied of the expediency thereof, give such leave, upon
such terms, if any, as shall appear just, and may give any directions which may
appear desirable as to postponing the trial of the other questions of fact": Jud.
Rules, Order 40, rule 8.
" No action shall, except by leave of the Court or a judge, be set down on
motion for judgment after the expiration of one year from the time when the
party seeking to set down the same first became entitled so to do ": Jud. Rules,
Order 40, rule 9.
" Upon a motion for judgment, or for a new trial, the Court may, if satisfied
that it has before it all the materials necessary for finally determining the ques-
tions in dispute, or any of them, or for awarding any relief sought, give judgment
accordingly, or may, if it shall be' of opinion that it has not sufficient materials
before it to enable it to give judgment, direct the motion to stand over for further
consideration, and direct such issues or questions to be tried or determined, and
such accounts and inquiries to be taken and made as it may think fit ": Jud.
Rules, Order 40, rule 10,
" Aiiy party to an action may at any stage thereof apply to the Court or a
judge for such order as he may, upon any admissions of fact in the pleadings, be
entitled to, without waiting for the determination of any other question between
the parties. The foregoing rules of this Order shall not apply to such applica-
tions, but any such application may be made by motion, so soon as the right of
the party applying to the relief claimed has appeared, from the pleadings. The
Court or a judge may, on any such application, give such relief, subject to such
terms, if any, as such Court or judge may think fit": Jud. Rules, Order 40,
rule 11.
Entry of Judgment.
" Every judgment shall be entered by the proper officer in tDe book to be kept
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66 TRIAL-EVIDENCE— MOTION FOR JUDGMENT.
for the purpose. The party entering the judgment shall deliver to the officer a
copy of the whole of the pleadings in the action other than any petition or
summons ; such copy shall he in print, except such parts (if any) of the pleadings
as are hy these rules permitted to be written: Provided that no copy need be
delivered of any pleading a copy of which has been delivered on entering any
previous judgment in such action. The forms in Appendix (D.)" to the Act
" may be used, with such variations as circumstances may require ": Jud. Rules,
Order 41, rule 1.
" Where any judgment is pronounced by the Court or a judge in Court, the
entry of the judgment shall be dated as of the day on which such judgment is
pronounced, and the judgment shall take effect from that date ": Jud. Rules,
Order 41, rule 2.
" In all oases not within the last preceding rule, the entry of judgment shall
be dated as of the day on which the requisite documents are left with the proper
officer for the purpose of such entry, and the judgment shall take effect from that
date ": Jud. Rules, Order 41, rule 3.
" Where under the Acts or these rules, or otherwise, it is provided that any
judgment may be entered or signed upon the filing of any affidavit or production
of any document, the officer shall examine the affidavit or document produced,
and if the same be regular and contain all that is by law required he shall enter
judgment accordingly " : Jud. Rules, Order 41, rule 4.
" Where by the Act or these rules, or otherwise, any judgment may be entered
pursuant to any order or certificate, or return to any writ, the production of such
order or certificate sealed with the seal of the Court, or of such return, shall be a
sufficient authority to the officer to enter judgment accordingly ": Jud. Rules,
Order 41, rule 5.
" Any judgment of nonsuit, unless the Court or a judge otherwise directs,
shall have the same effect as a judgment upon the merits for the deft; but
in any case of mistake, surprise, or accident, any judgment of nonsuit may be set
aside on such terms, as to payment of costs and otherwise, as to the Court or a
judge shall seem just ": Jud. Rules, Order 41, rule 6.
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CHAPTER XIII.
APPEALS.
Order or Judgment affirmed.
Upon motion by way of appeal, &o., in the presence of counsel for,
&o., and npon reading, &c,. Let the said order or judgment dated, &c.,
be affirmed. [If deposit : Let the sum of £— deposited with, &c., as
a security for costs, be paid to the Pits, or to — their solicitors.]
Let the appellant A. pay to the Pits their costs of the said appeal
beyond the said sum of £— (such costs to be taxed by the taxing
master in case the parties differ).
Order or Judgment reversed or varied.
Upon motion by way of appeal, &c., in the presence of counsel for,
&c., and upon reading, &o., Let the said order or judgment dated, &c.,
be reversed [or, discharged]. If new order made besides discharging the
order appealed from add the new directions. [If deposit : Let the sum of
£ — , deposited with, &c., as a security for costs be repaid to the appel-
lants, or to — their solicitors.] If order or judgment varied : Let so
much of the said order or judgment dated, &c., as directs, &c., be
discharged [or, varied], and instead thereof, Let, &c. Add the direc-
tions.— And directions (if any) as to costs.
Transfer of Jdeisdiotion.
" The Court of Appeal established by this Act shall be a superior Court of
record, and there shall be transferred to and vested in such Court all jurisdiction
and powers of the Courts following (that is to say) :
(1.) All jurisdiction and powers of the Lord Chancellor and of the Court of
Appeal in Chancery, in the exercise of his and its appellate jurisdiction,
and of the same Court as a Court of Appeal in Bankruptcy.
(2.) All jurisdiction and powers of the Court of Appeal in Chancery of the
county palatine of Lancaster, and all jurisdiction and powers of the
Chancellor of the duchy and county palatine of Lancaster, when sitting
alone or apart from the Lords Justices of Appeal in Chancery, as a judge
of re-hearing or appeal from decrees or orders of the Court of Chancery
of the county palatine of Lancaster ;
(3.) All jurisdiction and powers of the Court of the Lord Warden of the Stan-
naries, assisted by his assessors, including all jurisdiction and powers of
the said Lord Warden when sitting in his capacity of judge ;
F 2
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68 APPEALS.
(4.) All jurisdiction and powers of the Court of Exchequer Chamber ;
(5.) All jurisdiction vested in or capable of being exercised by Her Majesty in
Council, or the Judicial Committee of Her Majesty's Privy Council,
upon appeal from any judgment or order of the Higb Court of Admi-
ralty, or from any order in Lunacy made by the Lord Chancellor, or
any other person having jurisdiction in Lunacy " : Judicature Act, 1873
(36 & 37 Vict. c. 66), s. 18.
Appeals from High Court.
" The said Court of Appeal shall have jurisdiction and power to hear and de-
termine appeals from any judgment or order, save as hereinafter mentioned, of
Her Majesty's High Court of Justice, or of any judges or judge thereof, subject
to the provisions of this Act, and to such, rules and orders of Court for regulating
the terms and conditions on which such appeals shall be allowed, as may be made
pursuant to this Act.
" For all purposes of and incidental to the hearing and determination of any
appeal within its jurisdiction, and the amendmeat, execution, and enforcement of ,
any judgment or order made on any such appeal, and for the purpose of every
other authority expressly given to the Court of Appeal by this Act, the said Court
of Appeal shall have all the power, authority, and jurisdiction by this Act
vested in the High Court of Justice " : Judicature Act, 1873 (36 & 37 Vict.
o. 66), s. 19.
Appeals from Inferior Courts to Divisional Courts.
" All appeals from petty or quarter sessions, from a County Court, or from any
otber inferior Court, which might before the passing of this Act have been brought
to any Court or judge whose jurisdiction is by this Act transferred to the High
Court of Justice, may be heard and determined by Divisional Courts of the said
High Court of Justice, consisting respectively of such of the judges thereof as
may from time to time be assigned for that purpose pursuant to rules of Court,
or (subject to rules of Court) as may be so assigned according- to arrangements
made for the purpose by the judges of the said High Court. The determination
of such appeals respectively by such Divisional Courts shall be final unless special
leave to appeal from the same to the Court of Appeal shall be given by the Divi-
sional Court by which any such appeal from an inferior Court shall have been
heard " : Judicature Act, 1873 (36 & 37 Vict. o. 66), s. 45.
Constitution of Court of Appeal.
See Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 4.
Tenure of Office of Judges.
See Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 5.
Orders not subject to appeal.
"No order made by the High Court of Justice, or any judge thereof, by the
consent of parties, or as to costs only, which by law are left to the discretion of
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APPEALS. 69
the Court, shall be suhjeot to any appeal, except by leave of the Court or judge
making such order " : Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 49.
Discharging Oedees made in Chambees.
" Every order made by a judge of the said High Court in chambers, except
orders made in the exercise of such discretion as aforesaid, may be set aside or
discharged upon notice by any Divisional Court, or by the judge sitting in Court
according to the course and practice of the Division of the High Court to which
the particular cause or matter in which such order is made may he assigned ; and
no appeal shall lie from any such order to set aside or discharge which no such
motion has been made, unless by special leave of the judge by whom such order
was made, or of the Court of Appeal " - Judicature Act, 1873 (36 & 37 Vict.
c. 66), s. 50.
Absence of a Judge.
" Upon the request of the Lord Chancellor it shall be lawful for any judge of
the Court of Appeal, who may consent so to do, to sit aud act as a judge of the
said High Court, or to perform any other ofiBcial or ministerial acts for or on
behalf of any judge absent from illness, or any other cause, or in the place of any
judge whose ofSce has become vacant, or as an additional judge of any Division ;
and while so sitting and acting any such judge of the Coxirt of Appeal shall have
all the power and authority of a judge of the said High Court " - Judicature Act,
1873 (36 & 37 Vict. o. 66), s. 51.
POWEE OF A SINGLE JuDGE. , *
" In any cause or matter pending before the Court of Appeal any direction in-
cidental thereto, not involving the decision of the appeal, may be given by a
single judge of the Court of Appeal ; and a single judge of the Court of Appeal
may at any time during vacation make any interim order to prevent prejudice to
the claims of any parties pending an appeal as he may think fit ; but every such
order made by a single judge may be discharged or varied by the Court of Appeal
or a Divisional Court thereof " : Judicature Act, 1873 (36 & 37 Vict. c. 66),
S..52.
Final and Inteblocutort Orders.
" Every appeal to the Court of Appeal shall, where the subject-matter of the
appeal is a iinal order, decree, or judgment, be heard before not less than three
judges of the said Court sitting together, and shall, where the subject-matter of
the appeal is an interlocutory order, decree, or judgment, be beard before not less
than two judges of the said Court sitting together.
" Any doubt which may arise as to what decrees, orders, or judgments are
final, and what are interlocutory, shall be determined by the Court of Appeal.
" Subject to the provisions contained in this section, the Court of Appeal may
sit in two divisions at the same time " : Judicature Act, 1875 (38 & 39 Vict,
c. 77), s. 12.
Judges not to sit on Appeal from thiIr own Judgments.
" No judge of the said Court of Appeal shall sit as a judge on the hearing of
an appeal from any judgment or order made by himself, or made, by any Divi-
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70 APPEALS.
sional Court of the High Court of wbich he was and is a member " : Judicature
Act, 1875 (38 & 39 Viet. c. 77), s. 4.
Bills of Exceptions and Pkoceemngs in Error.
" Bills of exceptions and proceedings in error shall be abolished " : Jud. Rules,
Order 58, rule 1.
Appeals — How brought — Notice op Motion.
" All appeals to the Court of Appeal shall be by way of rehearing, and shall be
brought by notice of motion in a summary way, and no petition, case, or other
formal proceeding other than such notice of motion shall be necessary. The
appellant n»ay by the notice of motion appeal from the whole or any part of any
judgment or order, and the notice of motion shall state whether the whole or part
only of such judgment or order is complained of, and in the latter case shall
specify such part " : Jud. Eules, Order 58, rule 2.
" The notice of appeal shall be served upon all parties directly affected by the
appeal, and it shall not be necessary to serve parties not so affected ; but the
Court of Appeal may direct notice of the appeal to be served on all or any parties
to the action or other proceeding, or upon any person not a party, and in the mean-
time may postpone or adjourn the hearing of the appeal upon such terms as may
seem just, and may give such judgment and make such order as might have been
given or made if the persons served with such notice had been originally parties.
Any notice of appeal may be amended at any time as to the Court of Appeal may
seem fit " : Jud. llules. Order 58, rule 3.
" Notice of appeal from any judgment, whether final or interlocutory, shall be
a fourteen days' notice, and notice of appeal from any interlocutory order shall be
a four days' notice " : Jud. Eules, Order 58, rule 4.
" Wherever under these Eules an application may be made either to the Court
below or to the Court of Appeal, it shall be made in the first instance to the Court
or judge below " : Jud. Eules, Order 58, rule 17.
" Every application to a judge of the Court of Appeal shall be by motion, and
the provisions of Order 53 shall apply thereto " : Jud. Eules, Order 58, rule 18.
How set down.
" The party appealing from a judgment or order shall produce to the proper
officer of the Court of Appeal the judgment or order, or an office copy thereof, and
shall leave with him a copy of the notice of appeal to be filed, and such officer
shall thereupon set down the appeal by entering the same in the proper list of
appeals, and it shall come on to be heard according to its order in such list, unless
the Court of Appeal or a judge thereof shall otherwise direct, but so as not to
come into the paper for hearing before the day named in the notice of appeal " :
Jud. Eules, Order 58, rule 8,
Amendment — Further Evidence.
" The Court of Appeal shall have all the power and duties as to amendment and
otherwise of the Court of first instance, together with full discretionary power to
receive further evidence upon questions of fact, such evidence to be either by oral
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APPEALS. 71
exatnination in Court, by affidavit, or by depcfeition taken before an. examiner or
commissioner. Such further evidence may be given without special leave upon
interlocutory application, or in any case as to matters which have occurred after
the date of the decision from which the appeal is brought. Upon appeals from a
judgment after trial or hearing of any cause or matter upon the merits, such further
evidence (save as to matters subsequent as aforesaid) shall be admitted on special
grounds only, and not without special leave of the Court. The Court of Appeal
shall have power to give any judgment and make any order which ought to have
been made, and to make such further or other order as the case may require. The
powers aforesaid shall he exercised by the said Court, notwithstanding that the notice
of appeal may be that part only of the decision may be reversed or varied, and such
powers may also be exercised in favour of all or any of the respondents or parties,
although such respondents or parties may not have appealed from or complained
of the decision. The Court of Appeal shall have power to make such order as to
the whole or any part of the costs of the appeal as may seem just " : Jud. Eules,
Order 58, rule 5.
Limit of Time for appealing — Deposit.
" No appeal from any interlocutory order shall, except by special leave of the
Court of Appeal, be brought after the expiration of twenty-one days, and no other
appeal shall, except by such leave, be brought after the expiration of one year.
The said respective periods shall be calculated from the time at which the judg-
ment or order is signed, entered, or otherwise perfected, or, in the case of the
refusal of an apphcation, from the date of such refusal. Such deposit or other
security for the costs to be occasioned by any appeal shall be made or given as
may be directed tmder special circumstances by the Court of Appeal " • Jud. Eules,
Order 58, rule 15.
Limit of Time foe appealing in Winding-up Orders.
" The time for appealing from any order or decision made or given in the matter
of the winding up of a company under the provisions of the Companies Act, 1862,
or any Act amending the same, or any order or decision made in the matter of any
bankruptcy, or in any other matter not being an action, shall be the same as the
time limited for appeal from an interlocutory order under rule 15 " : Jud. Eules,
Order 58, rule 9.
Ex parte Applications refused by Court below.
"Where an ex pcwte application has been refused by the Court below, an
application for a similar purpose may be [made to the Court of Appeal ex parte
within four days from the date of such refusal, or within such enlarged time as a
judge of the Court below or of the Appeal Court may allow": Jud. Eules,
Order 58, rule 10.
Evidence in Court below— Questions of Eaot, &c.
" When any question of fact is involved in an appeal, the evidence taken in the
Court below bearing on such question shall, subject to any special order, be brought '
before the Court of Appeal as follows :
(a.) As to any evidence taken by afBdavit, by production of printed copies of
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72 APPEALS.
such of the affidavits as have been printed, and office copies of such of
them as have not been printed.
(i.) As to any evidence given orally, by the production of a copy of the judge's
notes or such other materials as the Court may deem expedient " ; Jud.
Rules, Order 58, rule 11 .
" Where evidence has not been printed in the Court below, the Court below or a
judge thereof, or the Court of Appeal or a judge thereof, may order the whole or
any part thereof to be printed for the purpose of the appeal. Any party printing
evidence for the purpose of au appeal without such order shall bear tbe costs thereof,
unless the Court of Appeal or a judge thereof shall otherwise order " : Jud. Eules,
Order 58, rule 12.
" If upon the hearing of an appeal a question arise as to the ruling or direction
of the judge to a jury or assessor, the Court shall have regard to verified notes or
other evidence, and to such other materials as the Court may deem expedient " :
Jud. Eules, Order 58, rule 13.
No interlocutory order or rule from which there has been no appeal shall
operate so as to bar or prejudice the Court of Appeal from giving such decision
upon the appeal as may seem just'" : Jud. Eules, Order 58, rule 14.
Cross Appeals — Notice — Omission to give Notice.
" It shall not, under any circumstances, be necessary for a respondent to give
notice of motion by way of cross appeal, but if a respondent intends, upon the
hearing of the appeal, to contend that the decision of the Court below should be
varied or altered, he shall, within the time specified in the next rule, or such time
as may be prescribed by special order, give notice of such intention to any parties
■who may be affected by such contention. The omission to give such notice shall
not diminish the powers by this Act conferred upon the Court of Appeal, but may,
in the discretion of the Court, be ground for an adjournment of the appeal, or for
a special order as to costs " ■ Jud. Eules, Order 58, rule 6.
"Subject to any special order which may be made, notice by a respondent
under the last preceding rule shall, in the case of any appeal from a final judgment,
be an eight days' notice, and in the case of an appeal from an interlocutory order
a two days' notice " : Jud. Eules, Order 58, rule 7.
Appeal not to stay Execution.
An appeal shall not operate as a stay of execution or of proceedings under the
decision appealed from, except so far as the Court appealed from, or any judge
thereof, or the Court of Appeal, may so order ; and no intermediate act or pro-
ceeding shall be invalidated, except so far as the Court appealed from may direct " :
Jud. Eules, Order 58, rule 16.
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CHAPTER XIV.
MOTIONS AND APPLICATIONS AT OHAMBEES.
Motions.
" Whbke by these rules any application is authorized to he made to the Court
or a judge in an action, such applicatioii, if made to a Divisional Court or to a
judge in Court, shall he made hy motion " : .lud. Rules, Order 53, rule 1.
" No rule or order to shew cause shall be granted in any action, except in the
cases in which an application for such rule or order is expressly authorized by
these rules": Jud. Rules, Order 53, rule 2.
" Except where by the practice existing at the time of the passing of the said
Act any ordeV or rule has heretofore been made ex 'parte absolute in the first
instance, and except where by these rules it is otherwise provided, and except
where the motion is for a rule to shew cause only, no motion shall be made with-
out previous notice to the parties affected thereby. But the Court or judge, if
satisfied that the delay caused by proceeding in the ordinary way would or might
entail irreparable or serious mischief, may make any order ex •parte upon sucli
terms as to costs or otherwise, and subject to such undertaking, if any, as the
Court or judge may think just ; and any party affected by such order may move
to set it aside": Jud. Rules, Order 53, rule 3.
" Unless the Court or judge give special leave to the contrary there must be
at least two clear days between the service of a notice of motion and the day
named in the notice for hearing the motion " : Jud. Rules, Order 53, rule 4.
" If on the hearing of a motion or other application the Court or judge shall be
of opinion that any person to whom notice has not been given ought to have or
to have had such notice, the Court or judge may either dismiss the motion or
application, or adjourn the hearing thereof, in order that such notice may be
given, upon such terms, if any, as the Court or judge may think fit to impose '' :
Jud. Rules, Order 53, rule 5.
" The hearing of any motion or application may from time to time be ad-
journed upon such terms, if any, as the Court or judge shall think fit : " Jud,
Rules, Order 53, rule 6.
" The pit shall, without any special leave, be at liberty to serve any notice
of motion or other notice, or any petition or summons upon any deft, who,
bavin" been duly served with a writ of summons to appear in the action, has not
appeared within the time limited for that purpose": Jud. Rules, Order 53,
rule 7.
* "The pit may, by leave of the Court or a judge to be obtained ex parte, serve
any notice of motion upon any deft along with the writ of summons, or at any
time after service of the writ of summons and before the time limited for the
appearance of such deft " : Jud. Rules, Order 53, rule 8.
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74 MOTIONS AND APPLICATIONS AT CHAMBEES.
Applications at Chambers.
" Every application at chambers authorized by these rales shall be made in a
summary way by summons :" Jud. Eules, Order 54, rule 1.
" In the Queen's Bench, Common Pleas, and Exchequer Divisions a master,
and in the Probate, Divorce, and Admiralty Division a registrar, may transact all
such business and exercise all such authority and jurisdiction in respect of the
same as under the Act, or the schedule thereto, or these rules, may be transacted
or exercised by a judge at chambers, except in respect of the following proceed-
ings and matters ; that is to say, —
All matters relating to criminal proceedings or to the liberty of the sub-
ject :
The removal of actions from one Division or judge to another Division or
judge :
The settlement of issues, except by consent :
Discovery, whether of documents or otherwise, and inspection, except by
consent :
Appeals from district registrars :
Interpleader other than such matters arising in interpleader as relate to
practice only, except by consent :
Prohibitions :
Injunctions and other orders under sub-sect. 8 of sect. 28 of the Act, or
under Order 52, rules 1, 2, and 3, respectively :
Awarding of costs, other than the costs of any proceeding before such
master :
Reviewing taxation of costs :
Charging orders on stock funds, annuities, or share of dividends or annual
produce thereof:
Acknowledgments of married women " : Jud. Eules, Order 54, rule 2.
" If any matter appears to the master proper for the decision of a judge the
master may refer the same to a judge, and the judge may either dispose of the
matter or refer the same back to the master with such directions as he may
think fit " : Jud. Rules, Order 54, rule 3.
" Any person affected by an order or decision of a master may appeal there-
from to a judge at chambers. Such appeal shall be by summons, within four
days after the decision complained of, or such further time as may be allowed by
a judge or master " : Jud. Rules, Order 54, rule 4.
" An appeal from a master's decision shall be no stay of proceeding unless so
ordered by a judge or master " : Jud. Eules, Order 54, rule 5.
"In the Queen's Bench, Common Pleas, and Exchequer Divisions every
appeal to the Court from any decision at chambers shall be by motion, and shall
be made within eight days after the decision appealed against " : Jud. Rules,
Order 54, rule 6.
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■C 75 )
CHAPTER XV.
, CHANGES OF INTEEEST.
Effect of Marriage, Death, Bankruptcy, Assignment.
" An action shall not become abated by reason of the marriage, death, or bank-
mptcy of any of the parties, if the cause of action survive or continue, and shall
not become defective by the assignment, creation, or devolution of any estate
or title pendente lite :" Jud. Eules, Order 50, rule 1.
Eecesit Practice in Chanceey.
Under the former practice, if by any means the interest of a party in the
matters in litigation became vested in another, the proceedings were rendered
defective in proportion as the interest affected the suit : Lord Bed. 55.
And if any of the parties, pits or deftg, died, or if a female pit married,
regularly the suit abated ; but with respect to an abatement by the death of the
parties, it must have been by the death of such as were so far material parties and
concerned in interest as to make it necessary to have their representatives before
the Court : Eq. 0. Ab. 1 ; see also Fallowes v. Williamson, 11 Ves. 312.
If the whole interest of a party dying survives to another party to the suit, so
that no claim could be made by or against the representatives of the party dying,
the proceedings did not abate : Parry v. Qeeson, 3 Ch. Rep. 40 ; Lord Red. 59.
Nor did the death of a co-pit cause abatement in those cases where it was per-
mitted to one or more persons belonging to a class, as creditors, next of kin, &c.,
to file a bill on behalf of themselves ahd.the rest of the class : Leigh v, Thomas,
2 Ves. 312.
Nor where the suit had been institutled by a residuary legatee or next of kin,
or by one of several cestuis que trust loi administration under the provisions of
the 15 & 16 Vict. c. 86, s. 42 ; Einde v. Morton, 2 H. & M. 368 j 13 W. R. 401.
But although the death of one of several creditors suing jpintly on behalf of
their class did not abate the suit, yet where creditors joined in filing a bill in
respect of their several demands, and not on behalf of all the other creditors, the
death of the co-pit caused an abatement : Boddy v. Kent, 1 Mer. 364.
And if the other co-pits were not creditors in the same capacity as the de-
ceased co-pit they could only prosecute the suit so far as their interest was
concerned : Eurney v. Morgan, 1 Sim. & Stu. 361.
In consequence of a /eme coverte's incapacity to sue, the marriage »rf a female
pit caused under the former practice an abatement of the suit.
But if the married woman was a deft no abatement was caused by the mar-
riage, and the husband and wife were merely named in the future proceedings :
Abergavenny v. Abergavenny, 1 Eq. C. Ab. 1.
If upon the death of the husband of a female pit suing in her right the widow
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76 CHANaES OE INTEREST.
did not proceed in the cause, the suit was considered as abated, and she was not
liable to costs, nor bound by the former proceedings : Lord Red. 59.
But if she thought proper to proceed in the suit she might have done so without
revivor : Ooppin v. Coppin, 2 P. Wms. 496.
If a female pit married pending a suit, and afterward.s before revivor her
husband died, no order of revivor was necessary ; but the subsequent steps must
have been in his name and with the description acquired by marriage: 1 Ves.
182.
The death of a deft only abated the suit so far as his own interest was
concerned, and it was sufficient to revive the suit against such of the executors as
proved the will : Strickland v. Strickland, 12 Sim. 463 ; Finch v. Lord Win-
chelsea, I Eq. C. Ab. 2.
Bankruptcy of a pit rendered a suit defective under the former practice : Man-
dall V. Mumford, 18 Ves. 424, 427 ; 3 Beav. 294 ; Tennant v. Storer, 7 Jur.
526.
The bankruptcy of a deft caused a defect in the suit quoad his own interests,
and his assignees are necessary parties, if those interests are to be bound by the
proceedings : see Fussell v. Elwin, 7 Hare, 29 ; Lewin v. AUem, 8 W. E. 603.
Where a deft became bankrupt he was still entitled to move for the dismissal
of a bill filed against him if the pit neglected to prosecute the suit ; and it was no
answer to the motion that the rights had become vested in his assignees : Mon-
teith V. Taylor, 9 Ves. 615 ; and the bill would have been dismissed with costs :
Blackmore v. Smith, 1 Mao. & Gr. 80.
Motions to discharge process of contempt issued pending an abatement might
have been made under the former practice although the suit was abated, and may
still be made notwithstanding the death of parties to the action.
And if an order had been obtained, although irregularly, during an abatement,
it was not considered as a nullity, and an application might have been made nol-
withstanding the abatement to discharge the order : Boddy v. Kent, 1 Mer. 361.
Where process of contempt had been issued and a deft was in custody upon it,
and afterwards the suit abated, the deft was not thereby entitled, under the
former practice, to his discharge out of custody.
And an injunction was not absolutely dissolved by an abatement. But the
deft must, if he wished to get rid of the injunction, have moved that the pit
should revive within a limited time, or that the injunction be dissolved: Ghowick
V. Dimes, 3 Beav. 292 ; Lee v. Lee, 1 Hare, 622.
But where a perpetual injunction had been granted, it was not necessary upon
an abatement to revive merely to keep on foot the injunction: Teomans v. Eel-
vington, Dick. 351.
A commission to examine witnesses abroad was not affected by an abatement,
provided that neither the commissioners nor wittiesses had received notice of the
abatement:- Sinclair v. James, 1 Dick. 277.
The death of a deft prevented those proceedings only by which the interest of
the deceased deft might be affected : Finch v. Lord Winchelsea, 1 Eq. C. Ab. 2.
Where the rights of parties had been ascertained, orders might be made direct-
ing payment of funds in Court to the persons entitled, notwithstanding the deaths
of pits or defts : Jones v. Williams, 1 C. P. Coop. 488.
So, too, where funds have been carried to a sepai'ate account in the cause :
Boundell v. Currier, 6 Ves. 250.
And where the income of a fund in Court had been directed to be paid to a
tenant for life under an order of the Court, which has reserved to the remainder-
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CHANGES OF INTEREST. 77
men liberty to apply on the death of the tenant for life, the fund might he dealt
with without revivor : White, 78.
Where the application was to deal with funds standing to the general credit of
a cause without revivor, it must have been shewn to the Court that the general
purposes of the suit had been satisfied, and proof given of the title of the
claimant.
Orders may he made, notwithstanding the death of partias, for the delivery up
of deeds and writings brought into Court ; or a reference made for inquiry to
whom they belong : 1 Ves. 185. And orders for the conduct of the action : Oooh
V. Bolton, 5 Russ. 282. So, too, orders have been made, notwithstanding an
abatement, to enrol a decree nunc pro tunc : Buchingham- v. Sheffield, Amh. 586.
The death of a party after the hearing hut before judgment does not prevent
judgment nor drawing up the order : Davies v. Davies, 9 Ves. 461 ; Gollinson v.
Lister, 20 Beav. 555 ; Belsham v. Percival, 8 Hare, 157 ; Boucicault v. Delafield,
1 H. & M. 597 ; 9 Jur. (N. S.) 1282.
Nor where the pit in a suit dies between the presentation of an appeal and the
hearing : Chadwick v. Ohadwick, L. R. 8 Ch. 926.
And where various proceedings have been taken in ignorance of the death
of a party, the Court has affirmed them without revivor : Souston v. Briscoe,
7 W. R. 394.
But where the revivor was after a decree to account, it was harrahle by the
Statute of Limitations : HoUingshead's Case, 1 P. Wms. 743.
Upon the death or removal of an assignee (pit) no abatement was caused, but
upon the suggestion of such death or removal the Court allowed the name of the
surviving or new assignee to be substituted : 12 & 13 Vict. c. 106, s. 157.
Suits instituted by or against a banking company in the name of the public
registered officer, might, in case of his decease, resignation, or removal, have been
continued by or against any other public officer of the company for the time
being : 7 Geo. 4, c. 46, s. 9.
Suits by or against the Solicitor to the Treasury, as nominee of the Crown,
were not to abate by his decease, resignation, or removal, but might have been
continued by or against his successor : 15 & 16 Vict. c. 3.
Suits by or against industrial and provident societies did not abate, nor hedome
defective by the death or change of the officer to sue or be sued, or by a change
in the members of the society.
Effect of Outlawry, Attainder, Alienage.
If a party to a suit became outlawed, it immediately ceased so far as he was
concerned. But outlawry in an action at law did not disqualify the party out-
lawed from suing in equity for relief from hisliability at law. Nor was outlawry
in an executor or next friend any disqualification, because they did not claim in
their own right : White, 68 ; Gilb. For. Rom.
The outlawry of a pit was no bar to the motion of a deft to dismiss the suit for
want of prosecution : Joh. 630.
Where a plea of outlawry had been put in to the bill, and the outlawry was
afterwards reversed, either an order of revivor or an order to proceed was neoes-
rary : Hunter v. Ayre, 26 Beav. 15.
But where a pit became outlawed, and no plea of the outlawry was on the
record whether, upon the outlawry becoming reversed, an order to proceed was
necessary, gMsere : White, 69.
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78 CHANGES OF INTEREST.
As one of the consequences of an attainder for treason or felony is incapacity to
maintain a suit in any Court of justice, upon this event happening to a pit the
suit, it was said, wholly ceased as to him : White, 70.
A pit upon his attainder being reversed becomes entitled to continue his suit,
and the necessity of an order to continue the proceedings will probably depend,
as in case of outlawry, on whether there is a plea of attainder.
For a personal demand, an alien bom, provided he be not an alien enemy, may
sue in these Courts : Rawhifenseat v. Barker, 1 Atk, 51.
As an alien enemy not resident in this country, or resident here without the
permission of Government, cannot institute any suit in this country until both
nations are at peace (Co. Litt. 1296), a pit may in the course of a suit be inca-
pacitated from further proceeding with it, and the alienage may cause a suspen-
sion of the proceedings.
But many of the disabilities which formerly existed in respect to aliens have
been removed : see 7 & 8 Vict. c. 66.
In the event of war breaking out between the country of the pit (an alien) and
this country after the commencement of the suit, it seems that, as in the case of
outlawry, the proceedings may become suspended by operation of law as soon as
the disability attaches. An order to proceed in the action might be required
when the disability is removed.
The Eight to an Order to carry on Proceedings.
" In case of the marriage, death, or bankruptcy, or devolution of estate by opera-
tion of law, of any party to an action, the Court or a judge may, if it be deemed
necessary for the complete settlement of all the questions involved in the action,
order that the husband, personal representative, trustee, or other successor in
interest, if any, of such party be made a party to the action, or be served with
notice thereof in such manner and form" as may be prescribed by Bules of
Court, " and on such terms as the Court or judge shall think just, and shall make
such order for the disposal of the action as may be just": Jud. Bules, Order 50,
rule 2.
" In case of an assignment, creation, or devolution of any estate or title pendente
lite, the action may be continued by or against the person to or upon whom such
estate or title has come or devolved" : Jud. Eules, Order 50, rule 3.
" Where, by reason of marriage, death, or bankruptcy, or any other event
occurring after the commencement of an action, and causing a change or trans-
mission of interest or liability, or by reason of any person interested coming into
existence after the commencement of the action, it becomes necessary or desirable
that any person not already a party to the action should be made a party thereto,
or that any person already a party thereto should be made a party thereto in
another capacity, an order that the! proceedings in the action shall be carried on
between the continuing parties to the action and such new party or parties may
be obtained ex parte on application to the Court or a judge, upon an allegation of
such change or transmission of interest or liability, or of such person interested
having come into existence." Jud. Rules, Order 50, rule 4.
It will be generally necessary, by analogy to the former practice, in order to
entitle a person to carry on the proceedings, that there should be some privity
between him and the individual whose death or assignment has caused the defect
in the action.
Where, in consequence of the death of a pit or deft, a fresh interest arises in
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CHANGES OF INTEEEST. 79
anotlier person not a party to the action, and there is no such privity, the 15 & 16
Vict. c. 86, did not apply : Beardmore y. Gregory, 2 H. & M. 491 ; 11 Jur.
(N.S.) 363; Hilh v. Springett, L. E. 5 Eq. 123.
If there are several pits, and the defect is caused by the death of one of them,
the action may he carried on either by the surviving pits, or any of them, or by
the person who succeeds to the interest of the deceased pit.
There is no rule of priority among the pits in moving for the order : Livesey '
V. Livesey, 1 Kuss. & My. 10 ; and no notice is required to be given by the pit
obtaining the order to his co-pits, nor by the representatives of a deceased pit to
the surviving pit. The rule applies qui prior est tempore potior est jure.
The common order under the former practice might have been obtained by or
against the devisees of a pit : Eyre v. Brett, 34 Beav. 441 ; 13 W. E. 763 ; Bed'
ford V. Bedford, 35 Beav. 342 ; Colyer v. Cdlyer, L. E. 1 Ch. 482 ; Ohadwick v.
Ohadwich, L. E. 8 Ch. 926.
So, too, by or against the assignees of a pit, in those cases where it is^deemed
necessary that an assignee pendente lite should be before the Court : Freeman
V. Penningtm, 3 De G. F. & J. 295 ; Williamson v. Jefferys, 12 W. E. 403 ;
Brandon v. Brandon, 3 N. B. 287; Ingham v. Washett, L. E. 11 Eq. 283 ;
Bibby v. Naylor, L. E. 17 Bq. 14.
And by or against the assignees or trustees in bankruptcy of a pit : Jackson
V. Biga By. Co., 28 Beav. 75 ; 6 Jur. (N.S.) 336 ; Thomas v. Buxton, L. E.
3 Ch. 407 ; Simpson v. Bathurst, L. E. 5 Ch. 193.
And by or against the asnignees or tnistees in bankruptcy of a deft : Lash v.
Miller, 4 De G. M. & G. 841 ; 1 Jur. (N.S.) 457 ; Kitchin v. Humble, 8 Jur.
(N.S.) 588.
Where the defect is caused by the marriage of a female pit, the common order
might have been obtained by the husband and wife ; or if the suit had been in
respect of the wife's separate property, by the wife at the instance of her next
friend : Trezevant v. Boughton, 5 W. E. 517 ; Powell v. Eeather, 1 L. T. (N.S.)
479.
The common order would not have been granted where the effect of it would
be inconsistent with the frame of the original suit : Tate v. Leithead, 9 Hare,
App. 61 ; Griffith v. VarAeythusen, 9 Hare, 85 ; Lucas v. Lucas, 1 Beav. 346 ;
Lambert v. Hutchinson, 1 Beav. 277; Fulham v. McCarthy, 1 H. L. C. 703;
Bates V. Bates, L. E. 13 Eq. 138.
A deft could not obtain the order before decree ; at that period of the suit he
must, in default of the pit curing the defect, have moved that the pit or his
representative cure the defect, and that in default the bill be dismissed : see
Cons. Ord. 32, rule 4.
But after decree the rights of the parties have been considered as ascertained,
and defts stand on an equal footing with pits as regards curing an abatement or
defect of suit : Lord Eed. 79 ; Finch v. Lord Winchelsea, 1 Eq. C. Ab. 2 ; Williams
V. Cook, 10 Ves. 406 ; Devaynes v. Morris, 1 My. & Cr. 213, 225.
But a deft will not be allowed the order where he has no interest in the
further prosecution of the action.: ..See Eorwood v. Schneider, 12 Ves. 311;
Doggett v. Eastern Counties By. Co., L. E. 6 Ch. 475.
The right of a deft to the order does not involve a right to the conduct of the
suit • the order merely substantiates the proceedings : see Lord Eed. 97 ; Burney
V. Morgan, 1 S. & S. 358 ; Johnson v. tiammersley, 24 Beav. 498.
It was not necessary under the old practice by bill of revivor or supplement
that a deft should have given notice to the pit before filing such bill : Eevaynes
*
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80 CHANGES OP INTEEEST.
V. Morris, 1 My. & Or. 225 ; Lys v. Lee, 2 De a. M, & Gr. 219. But notice has
been held necessary where a deft moved under the 15 & 16 Vict. e. 86 : Nohle v.
Stow, 30 Beav. 512 ; Shel/ord v. Baker, L. E. 4 Eq. 256.
The assignees or trustees in bankruptcy of a deft were entitled to the order
where the deft, if he had not become bankrupt, might have obtained it.
A person who has been served with notice of decree, and has liberty to attend
" the proceedings, has obtained orders under the 15 & 16 Vict. c. 86 : Chester v.
Chester, 18 W. B. 91.
So, too, a creditor who has proved his debt in a creditor's suit : Johnson v.
Eammersley, 24, Beav. 498. ..
And the personal representative of a deceased pit in such a suit would be
entitled to the order : Burney v. Morgan, 1 S. & S. 358.
And in a general administration suit, a creditor who has proved a debt upon
the estate being administered has obtained the order: Lower v. Lower, 2 De G.
M. & G. 784 ; 16 Jur. 968.
Where the Court has appointed a person to represent the estate of a deceased
party, an order of revivor under the 15 & 16 Vict. c. 86, might have been
obtained by or against such representative: Rdberfson v. Kemile, W. N. 1867,
305 ; Bliss v. Putman, 29 Beav. 20 ; Joint Stock Discount Company v. Brown,
L. E. 8 Eq. 376.
The common order might have been obtained against infants who upon birth
became necessary parties : Fullerton v. Martin, 1 Drew. 238 ; Phippen v.
Brown, 1 Jur. (N.S.) 198 ; Pickford v. Brown, 1 K. & J. 643 ; Egremont v.
Thompson, L. E. 4 Ch. 448.
And where proceedings had been taken inadvertently after the birth of neces-
sary parties, without the common order against them, the order has been after-
wards made, and the proceedings taken confirmed : Notley v. Palmer,! Jur. (N. S.)
221 ; 3 W. E. 201 ; Jebh v. Tugwell, 20 Beav. 461.
Subsequently it was held that where proceedings in a suit had been taken after
the birth of a child, a necessary party, and without a supplemental order obtained
previously to such proceedings, there was no jurisdiction under the 15 & 16 Vict.
c. 86, to make such child a party and to bind him by those proceedings : Capps
V. Capps, L. R. 4 Ch. 1 ; Anster v. Haines, L. E. 4 Ch. 445 ; Scott v. Buncombe,
L. B. 9 Eq. 665 ; sed qumre.
Where proceedings have been taken inadvertently in the absence of necessary
parties, and all the parties to the suit have been suis juri, the common order
has been granted without prejudice to the question whether the new parties were
bound by such proceedings : V-ffjart v. Vibart, L. E. 6 Eq. 251 ; Ingham v. Was-
kett, L. E. 11 Eq. 283 ; Bibby v. Kaylor, L. E. 17 Eq. 14.
The common order might have been obtained by or against the committees of a
lunatic pit : Baugar v. Stewart, 9 W. E. 266 ; Timpson v. London and North
Western By. Co., 11 W. E. 558. Or of a lunatic deft.
And the proceedings upon a petition might have been continued by the com-
mon order : Be Stagoll, 15 W. E. 974 ; Be Youl, L. E. 16 Eq. 107. Upon a
special case : Wilson v. Wliateley, IJ . & H. 331. And upon a summons : Pedder
V. Pedder, 5 Jur. (N.8.) 1145.
Determination of Interest.
Where by any event the whole interest of a party to the suit is entirely deter-
mined, and where no person can claim under such party either by operation of
•
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CHANGES OF INTEREST. 81
law or act of parties, a bill in tie nature of an original bill must have been filed
under tbe former practice : see^Lord Red. 72 ; Att.-Oen. v. Foster, 6 Jur. 1032. And
such a dispute could not have been curei} by an order under the 15 & 16 Viot.
c. 86 : Wordswm-th v. Parkins, 12 W. R. 120 ; Euhertson v, Qoold, L. R. 1 Eq.
104 ; Hills V. Springett, L. R. 5 Eq. 123.
But a tenant in tail succeeding to a title to sue in equity upon the death of a
preceding tenant in tail, if he came in by the same title as the original pit,
might, under the old practice by bill, have been made a party by the common
supplemental bill : Lloyd v. Johnes, 9 Ves. 87. And might have been made a party
by an order under the 15 & 16 Viot. c. 86 : Gresswell v. Bateman, 6 W. R. 206.
The same principle which applied to a suit by a tenant in tail applied where
the suit was against him : Lloyd v. Johnes, 9 Ves. 87 ; Egremont v. Thompson,
L. R. 4 Ch. 448. And the reason assigned for allowing a remainderman in tail
to continue a suit commenced by a former tenant in tail was, that equity con-
sidered a tenant in tail as sufficiently representing tbe inheritance for the purposes
of the suit : see observations of Lord Bldon in Lloyd v. Johnes, supra.
Where, however, the estate of the original pit was less than an estate tail, a
person coming in upon a remainder on the determination of such prior estate
could not, under the old practice by bill, continue the suit by means of the com-
mon supplemental biU : S. 0. Nor under the 15 & 16 Viot. c. 86.
And depositions taken in a cause against the original pit having a less estate
than an estate tail could not have been read against a remainderman: S. C.
In a suit for specific performance by a tenant for life, and the tenants in fee in
remainder, upon the death of the tenant for life the tenant in tail has been made
a party by an order under the 15 & 16 Vict. c. 86: Williams v. Llamelly By.
Co., L. R. 10 Eq. 401 ; but see Wilson v. Wilson, L. R. 10 Eq. 401.
Where in an administration suit the sole pit, a beneficiary, died before decree,
and the deft, also a beneficiary, became his legal personal representative, the common
order under the 15 & 16 Vict. c. 86, was refused : Bates v. Bates, L. R. 13 Eq. 138.
Where, however, the deceased party had been suing or been sued in autre
droit, e.g., by a person in bis representative character as executonor administrator,
upon his death or other determination of his interest, the administrator de bonis
non could have continued the original proceedings by an order under the 15 & 16
Vict. c. 86.
So, too, where a person had acted as executor under a mistake, and the true
executor succeeds to him in tbe administration : Cfough v. Latouch, 2 Moll. 406.
Where an ecclesiastical person or corporation sole suing or being sued in
respect of his preferment, dies, the succeeding bishop, rector, or other corporation
sole, is the person by or against whom the action may be continued.
But where the action is by a corporation sole having a personal interest, it can
be continued so far as it affects such personal interest by the personal representa-
tive.
Oedek foe Leave to caeey on Proceedings.
General Form.
Upon motion, &c., by counsel for — , and it being alleged [state
the event which renders the order necessary or desirable], and that it has
become necessary [or, desirable] that — should be made a party to
this action. Let the further proceedings in this action be carried on
by, &c., against, &c.
a
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82 CHANGES OF INTEREST.
The orders under the 15 & 16 Vict. c. 86, were drawn by the registrar, in most
cases as of course, without being mentioned to the Court : Bmjil v. PurO/xfe,
16 Jur. 965. But the briefs entered by the registrar in Court : S. C.
Wherever there were special circumstances the order was mentioned to the Court :
PUppen V. Brown, 1 Jur. (N.S.) 698 ; Oooddallv. SJeeeratt, 1 S. & G. App. 7.
The allegations need not have been proved: Gordon v. Jesson, 16 Beav. 440;
Martin v. Hadlow, 9 Hare, App. 52. But they must have shewn a title to the
order : Oriffith v. Bichetts, 3 Hare, 476.
Where, under the former practice, the person entitled to the right of revivor
availed himself of it, he was entitled to revive the suit, either wholly or partially,
either as to the real or personal estate of the deceased person : Ferries v. Cherry,
1 Bq. 0. Ab. 4 ; Lord Red. 4th ed. 80.
But although a suit might have been revived as to part of the matter in litigaf
tion, it could not be revived as to part of the proceedings. A revivor could not
be made to operate from a particular period of the cause : Gilb. For. Rom. 174.
A suit might have been revived as often as the interest in the matters in
question requires : Att.-Gen. v. Barhham, Hard. 201.
Where any cause became abated after the same was set down to be heard, the
solicitors to the pit certified the fact to the registrar, who caused an entry thereof
to be made in the cause book : Cons. Ord. 21, rule 7.
Where any cause shall have been standing for one year in the cause book
marked as " abated," or standing over, generally such cause shall at the expiration
of the year be struck out of the cause book : Cons. Ord. 21, rule 8.
Death of Sole Plaintiffs Application of Personal Bepreserdative or Heir-
at-Law.
Upon motion, &c., by counsel for A. B., the legal personal represen-
tative [or, heir-at-law of the deceased Pit], and it heing alleged, &c.,
Let the further proceedings in this action he carried on against the
Deft. See under former practice, Floekton v. Slee, 7 "W. E. 393 ; Fane
V. Bichards, 11 W. E. 524.
Where in administration suit by tenant for life, the sole pit died, and his exe-
cutor died without proving, the Court has made an order, upon the application of
a deft, reviving the proceedings against the other deft without any representative
of the pit, but without prejudice to any application of the personal representative
to intervene : Hayward v. Pile, L. R. 7 Ch. 634.
Where a sole pit died after his petition for re-hearing was before the Court of
Appeal, the proceedings were allowed to be revived on an original motion before
the Court of Appeal : Ckadvnck v. Chadwick, L. R. 8 Ch. 926.
And where the devise of real estate made in the will of a sole pit was alleged
to be disputed, the order was made without prejudice to the right of the deft to
apply to discharge the order : S. C.
Death of Sole Defendant — Application of Plaintiff.
Upon motion, &c., and it being alleged, &o., Let the further pro-
ceedings in this action be carried on against C. D. and E. F., as the
legal personal representatives of the deceased Deft A. [or, against G.,
as the heir-at-law of the deceased Deft A].
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CHANGES OF INTEREST. 83
Death of a Plaintiff— Aipplicatim of other Plaintiffs.
Upon motion, &c., Let the further proceedings in this action be
carried on by, &e., against C, as the legal personal representative {or,
heir-at-law]- of the deceased Pit B.
Any one of tlie surviving pits may obtain this order. Under the former
practice pits who did not join in the motion would have been made defts to the
revived suit, as well as the defts in the original cause : JPaUowes v. Williamson,
11 Ves. 306.
Where a co-pit died, and it was alleged that her estate was insolvent, and that
she had no further interest in the suit, an order has been made under the 15 &16
Vict. c. 86, without making her representatives parties. But an allegation of the
insolvency of her estate was directed to be inserted in the order : Leycester v.
Leycester, 5 New Re^. 183 ; 11 L. T. 442.
Birth of Party interested — Application of Plaintiffs.
Upon motion, &o., and it being alleged, &o., Let the further pro-
ceedings in this action be carried on against the said — .
Death of a Defendant — Application of Plaintiffs.
Upon motion, &c., and it being alleged, &c.. Let the further pro-
. ceedings in this action be carried on against C, as the legal personal
tepresentative of the deceased Deft B. [or, against C, as the heir-at-
law of the deceased Deft B.].
Where a deft dies leaving several executors, it is sufficient to carry on the
further proceedings against such of the executors as prove the will: Strickland v.
Strichland, 12 Sim. 463.
The common order under the 15 & 16 Vict. c. 86, has been made against an
executor who proved the will subsequently to the institution of the suit : Ealdane
V. Echford, 14 W. E. 306.
Where, under the former practice, the pit, upon the death of a deft, proceeded
by amendment against the executors, the amended bill was ordered to be taken
off the file : Wtbh v. Wardh, 5 New Rep. 426 ; Drake v. Symes, 2 De G. F. &
G. 81.
Death of a Defendant — Order against a Co-Plaintiff as Representative.
Upon motion, &c., and it being alleged, &c., Let the further pro-
ceedings in this action be carried on against A., as the legal personal
representative [oti, heir] of the deceased Deft B.
Where the interests of a pit in his representative character were not conflicting
vpith the interests of his co-pits, an order to this effect was made under the former
practice : Foster v. Bonner, 33 L. J. (N.S.) Ch. 384.
But where those interests become conflicting, the order was refused both under the
old practice by bill and the recent practice under the 15 & 16 Vict. c. 86 : see Tate
V. Leithead, 9 Hare, App. 61 ; and observations of Lord Justice Turner in Ch-iffith
G 2
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84 CHANGES OF INTEREST.
V. Vanheythusen, 9 Hare, 85 ; Liicas v. Lucas, 1 Beav. 346 ; Lambert v. Sut-
cMnson, Ibid. 277 ; Fulham r. McCarthy, 1 H. L. 0. 703.
Where the sole pit in an administration suit became the representative of the
sole deft, an order was made against beneficiaries served with the decree, and who
had liberty to attend : Pedder v. Pedder, 5 Jur. (N.S.) 1145 ; 8 W. E. 15.
Death of a Plaintiff — Application of a Befendant— after Decree.
Upon motion, &o., and it lieing alleged, &o., and that the surviving
Pits have neglected to carry on the proceedings in this action, Let the
farther proceedings in this action be carried on by the Deft A. against
B., as the legal personal representative of the deceased Pit C. [or,
against B. as the heir-at-law of the deceased Pit C]
The deft applying for the order must have some interest in the further prosecu-
tion of the proceedings : Eornwood v. Schneider, 12 Ves. 311.
The order which makes a fresh party to the suit at the instance of a deft, does
not prejudice the pit's right to the conduct of the proceedings.
Order against Mepresentatives of a Deceased Accounting Party — Account
of Assets.
Upon motion, &c., and it being alleged, &c., Let the further proceed-
ings in this action be carried on against B. as the legal personal
representative of the deceased Deft A. Let what, on taking the
accounts directed by the decree dated, &c., may be found due from the
estate of the said Deft A., be answered by the said B. out of the assets
of the said A., and if the said B. shall not admit assets for that
purpose, Let an account be taken of the estate of the said A. come to
the hands of the said B., or to any person or persons by his order or
for his use. Edwards v. Bothy, 19 Beav. 457 ; Gartwright v. Shepherd,
20 Beav. 122.
Similar Order against the Bep-esentative of a Deceased Plaintiff.
Let the further proceedings in this action be carried on by the sur-
viving Pit E. P., against W. P., the legal personal representative of
the deceased Pit H. P. And the said W. P. by his counsel admitting
assets of his testator. Let what, on taking the accounts directed by the
decree, shall appear to have been received by the deceased Pit H. P.,
be answered by the said W. P. out of the assets of the said H. P.
Plunge V. Field, Eeg. Lib., 27 B. 1865.
Where the representatives of a deceased pit, who was an accounting party,
admit assets of their testator, they usually appear on the motion : Plumhe v.
Field, Order, supra.
But the rule by which upon a motion under the Act an executor is to admit
assets, and in default to come to an account of his testator's estate, does not apply
to suits for specific performance : Collard v. Roe, ] Giff. 311 ; 5 Jur. (N.S )
1242,
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CHANGES OF INTEREST. 85
Marriages op Female Plaintiffs.
Upon motion, &c., and it being alleged, &o.. Let the further proceed-
ings in this action he carried on hy, &o., against A. and B., his wife [or
if husband and wife, or wife and next friend join in the motion : Let the
further proceedings in this action be carried on by, &o., against the
Defts].
A female pit who has married caimot during coverture contiuue the suit alone,
except where the husband is civiliter mortuus, or where the wife is judicially
separated from the husband, or has obtained a protection order.
Where the wife takes no separate interest in the subject-matter of the suit, she
and her husband, or the trustees of his settlement (if necessary parties), usually
concur with the other pits in applying for the common order.
Where a female pit marries and continues the suit by her next friend, the
consent of her next friend should either be entered as evidence in the order, or
filed with the Clerk of Records and Writs, and the fihng noted upon the order.
Where the married woman sues by her next friend, her husband might under
the former practice be joined as a co-pit : Meddowcroft v. Gajnphell, 13 Beav.
184 ; Platel v. Oradock, 1 0. P. Coop. 496 ; Smith v. Miches, 9 Jur. (N.S.) 1228 ;
Beardmore v. Gregory, 13 W. R. 675 ; 11 Jur. 363.
But it has been more usual to make the husband a deft : Richards v. Millett,
9 Jur. (N.S.) 1066; Hope v. Fox, 7 Jur. (N.S.) 186 ; 9 W. R. 360 ; White v.
Cohen, 1 Drew. 312.
Marriage of a Female Plaintiff— Settlement.
Upon motion, &c., and it being alleged, &c.. Let the further proceed-
ings in the action be carried on by, &,c., against P. and G. as the trustees
of the settlement dated, &c., or, if trustees join in the motion. Let the
further proceedings in this action be carried on by, &o., against the
Defts.
Where, upon the marriage of a female pit, her interest in the suit becomes
vested in the trustees of her settlement, they have usually been made parties by
the same order which cured the abatement: Atkinson v. Parker, 2 De G. M. &
G. 221.
Death of Husband in Lifetime of the Wife.
Where the husband of a female deft is suing in her right, his death under the
former practice abated the suit, if the widow did not proceed ; but if she did so
proceed, she might have done so v\dthout revivor.
Death of Wife m Lifetime of the Husband.
A different rule, with respect to the right to continue a suit instituted by a
husband and wife, prevailed when the wife died in the Ufetime of her husband
from that which is acted upon when the husband dies in the lifetime of his wife.
As the husband upon the death of his wife did not become entitled to her
choses in action by survivorship, an abatement of the suit took place, and to
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86 CHANGES OF INTEREST.
entitle the husband to continue the suit, he must in most cases have hecome her
personal representative by taking out administration to her effects.
But if any act has been done the effect of which would have been to deprive
the wife, in case she had outlived her husband, of his right by survivorship, and
to vest the property in her husband absolutely, the husband might, it was said,
have continued the suit in his individual character, without taking out adminis-
tration to his wife : Dan. 4th ed. 114 ; Lightbourne v. Eolyday, 2 Eq. Cas. Ab. 1 ;
Nash V. Nash, 2 Mad. 133.
Assignments oe Devises of Interest.
Upon motion, &c., and it being alleged, &c.. Let the further pro-
ceedings in this action be carried on against B., the assignee [or, de-
visee] of the Pit A. [or, Deft B.] If the assignee or devisee moves : Let
the further proceedings in this action be carried on by, &c,, against
the Defts. If a Deft moves after decree : Let the further proceedings
in this action be carried on by, &o., against B., the assignee or devisee
of the Pit A. [or. Deft B.]
The common order under the 15 & 16 Vict. o. 86, might, as stated supra,
have been obtained by or against the assignees of pits or defts, and by or against
the devisees of real estate of the pits or defts.
Where there is an allegation that the assignment or devise is disputed, the
order has been made without prejudice to the right of the deft to apply to dis^
charge it : Ohadwick v. Chadwick, L. R. 8 Oh. 926.
Bankruptcy op a Plaintiff or Defendant.
Upon motion, &c., and it being alleged, &c.. Let the further pro-
ceedings in this action be carried on against B., the trustee [or,
assignee] of the estate and effects of the bankrupt Pit A. [or.
Deft B.]
The assignees or trustees in bankruptcy of a pit or deft might, as stated supra,
p. 80, have been made parties by the common order.
Upon a covenant by a pit to assign his property in such a manner as certain
inspectors should appoint, the inspectors were made parties by the common order :
Croshey v. European Steam Shipping Co., W. N. (1866), 23, 70.
But where the bankruptcy was that of a sole pit, a deft was refused the order :
Maw V. Pearson, 12 W. R. 701 ; BoucicavU v. Delafidd, 10 Jur. (N.S ) 1063 •
12 W. R. 1025 ; 13 W. R. 64.
A bankrupt pit or deft may again be made a party where in the course of
the proceedings the bankruptcy is annulled : Mostyn v. Emmanuel, 5 New Rep
464.
If an executor or administrator becomes bankrupt the property of the testator
or intestate does not pass to his assignees : Williams on Executors, 533.
Id like manner on the bankruptcy of a trustee the trust property does not
pass to the assignees ; but bankrupt executors, administrators, and trustees are
the proper parties to represent their several fiduciary interests : Smith's Oh. Pr.
7th ed. 306 ; Strong v. Strong, 18 Beav. 408 ; Norrisv. Wright, 14 Beav. 291.
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CHANGES OF INTEREST. 87
■ But where such assignees have received part of the estate of the bankrupt it
may be necessary to make them parties.
Security foe Costs.
Where the party obtaining an order of revivor under the 15 & 16 Vict. o. 86,
viras resident out of the jurisdiction he was held liable to give security for costs :
Jackson v. Davenport, 29 Beav. 212 ; 7 Jur. (N.S.) 1224.
COHTINUING PkOCEEDINGS FOK CoSTS.
Wherever any decree or order had been made for the payment of costs in any
suit, and such suit afterwards became abated, any person interested under such
decree or order might in equity revive the suit, and thereupon prosecute and
enforce such decree or order : 33 & 34 Vict. c. 28, s. 19.
The Act 33 & 34 Vict. c. 28, did not authorize a revivor for costs in the case
of a death occurring before the passing of the Act : Boggett v. Eastern Ootmties
By. Co., L. E. 6 Oh. 474.
Previously to that Act there could have been no revivor for costs alone ; Gilb.
For. Eom. 181 ; Askew v. Townsend, 2 Dick. 471 ; Bdbertson v. Southgate, 7 Hare,
109 ; Jupp v. Qeering, 5 Mad. 375 ; Andrews v. Lockwood, 10 Jur. 277 ; 11 Jur.
957.
But there were exceptions to this rule in the following cases : — 1. Where the
costs had been taxed (Lowten v. Mayor of Colchester, 2 Mer. 113; Tucker v.
Wilkins, 7 Sim. 349). 2. Where the costs have been directed to be paid out of
the estate or a particular fund (Jenour v. Jenour, 10 Ves. 562 ; Blower v. Morrets,
3 Atk. 579 ; Kemp v. Mackrell, 2 Ves. 579 ; Malins v. Qreenway, 7 Hare, 391.)
3. Where something in the decree remained to be executed besides the payment
of costs (Johnson, v. Teck, 2 Ves. 1165 ; Morgan v. Scudamore, 2 Ves. 313 ;
see also Bowyer v. Beamish, 2 J. & Lat.r 240).
The principle of the rule that there could be no revivor for costs being that
the right to receive the costs or the liabihty to pay them died vrith the person, a
suit might have been revived for costs where the defect had been caused by bank-
ruptcy : Fa/rrall v. Davenport, L. E. 3 Eq. 473 ; EUison v. Sharp, L. R. 2 Oh.
355; but see Boucicault y. Delafleld, 12 W. R. 1025; 10 Jur. (N.S.) 1063;
13 W. E. 64.
Where an undertaking to pay costs was accepted from the solicitors of a deft
ordered to pay them, the undertaking was held to take away the right to enforce
the order : Doggett v. Eastern Counties By. Co., L. R. 6 Oh. 474.
Statutes of Limitations.
It has been said that on a bill in equity being abated by death, the executor
or administrator was barred by the Statute of Limitations if he did not revive
within six years ; but secus after a decree to account : Sollingshead's Case, 1
P. Wms. 742. Also that the Statute of Limitations did not begin to run until
administration to the deceased had been obtained : Murray v. East India Co., 5
B. & Aid. 204.
Where the pit in a suit instituted for an account of rents of real estate died,
and a bill of revivor and supplement had been filed, the plea of the Statute of
Limitations was overruled, as it did not state that six years had elapsed since the
representation was taken out : Perry v. Jenkins, 1 My. & Or. 118.
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88 CHANGES OF INTEREST. .
It has also been held that the Statute of Limitations could not he pleaded
in bar to a hill of revivor after a decree "to account : Earl of Egremont v. Thomp-
son, 1 Ball & B. 531; see also Eovenden v. Anerley, 2 Soh. & Lef. 636 ; Siggins
v; Shaw, 2 Dr. & W. 35'6.
No claim of a cestui que trust against his trustee for any property held on an
express trust, or in respect of any breach of such trust, shall be held to be barred
by any Statute of Limitation : Judicature Act, 1873, s. 25, sub-s. 2.
Where a final decree had been made for payment of a sum of money, it was
held that a revivor could not be sustained if not commenced within twenty years
from the date of the decree, no payment or acknowledgment having been made
in the meantime : Dunne v. Doyle, 10 Ir. Ch. Rep. 502.
And a demurrer has been allowed to a bill of revivor where the suit had abated
more than twenty years : Bland v. Davidson, 21 Beav. 312.
Service of Order — Appearance.
" An order so obtained shall, unless the Court or judge shall otherwise direct,
be served upon the continuing party or parties to the action, or their solicitors,
and also upon each such new party, unless the person making the application be
himself the only new party ; and the order shall from the time "of such service,
subject, nevertheless, to the next two following rules, be binding on the persons
served therewith, and every person therewith who is not already a party to the
action shall be bound to enter an appearance thereto within the same time and in
the same manner as if he had been served with a writ of sununons :" Jud. Rules,
Order 50, rule 5.
In a proper case the Court will order substituted service : see under former
practice, Forster v. Menzies, 16 Beav. 568 ; 17 Jur. 657.
Discharge of Order.
" Where any person who is under no disability, or under no disability other
than coverture, or being under any disability other than coverture, but having a
guardian ad litem in the action, shall be served with such order, such person may
apply to the Court or a judge to discharge or vary such order at any time within
twelve days from the service thereof :" Jud. Rules, Order 50, rule 6.
" Where any person being under any disability other than coverture, and not
having had a guardian ad litem appointed in the action, is served with any such
order, such person may apply to the Court or a judge to discharge or vary such
order at any time within twelve days from the appointment of a guardian or guar-
dians ad litem for such party, and until such period of twelve days shall have
expired, such order shall have no force or effect as against such last-mentioned
person :" Jud. Rules, Order 50, rule 7.
Compulsory Orders to prosecute Action.
Note. — These compulsory orders are framed upon the assumption that in certain
cases practice may be adopted in analogy with the recent Chancery practice.
But a different remedy appears to be provided by Jud. Rules, Order 50,
rule 2.
Death of Sole Pit.
Upon motion, &c., by counsel for the Defts [or, for the Deft F.], and
upon hearing counsel for [or, upon reading an affidavit of service of
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CHANGES OF INTEREST. 89
notice of their motion on] A. B. and C. D., the legal personal repre-
sentatives of the deceased Pit, Let the said A. B. and C. D., within
— days from the date [or, service] of this order, obtain an order
to carry on the proceedings in this action against the Defts [or, the
Deft F.]. And in default thereof, Let the Pit's action stand dismissed
ont of this Court for want of prosecution against the Defts [or, the
Deft P.], without costs, and without further order.
Where under the former practice a suit abated by the death of a sole pit, the
Court, upon motion of any deft made on notice served on the legal representative
of the deceased pit, might order that such legal representative should revive the
suit within a limited time or that the bill be dismissed : Cons.'Ord. 32, r. 4.
The dismissal of the bill in that case was without costs : Pudge v. Fitt, 3 W. E.
100; Eill v. Gaunt, 9 W. E. 68.
The rule was applicable to an abatement or defeat occurring he/ore decree:
Mills Y. Dudgeon, 1 W. R. 5 14. And the words " legal representative " were
considered as applying to the heir, devisee, executor, or administrator, according
as the suit related to real or personal estate : Price v. Berrington, 11 Beav. 90.
But a deft was not entitled to the order after the decree : Mills v. Dudgeon,
1 W. R. 514, overruling Price v. Berrington, 11 Beav. 90 ; Oldfield v. Odbbett,
20 Beav. 563.
Death of Co-Pit — Compulsory Order.
Upon motion, &c., hy counsel for the Defts [or, for the Deft P.], and
upon hearing counsel for [or, upon reading an affidavit of service of
notice of this motion on] A. B. and C. D., the surviving Pits, Let the
said A. B. and C. D., within — days from the date [or, service] of
this order, ohtain an order to carry on the proceedings in this action
against the Defts [or, the Deft B.]. And in default thereof Let the
Pit's action stand dismissed out of this Court for want of prosecution
against the Defts [or, Deft B.], with costs, &c.
Upon the death of a co-pit any deft might have moved under the former prac-
tice that the surviving pits should revive within a limited time : Adamson v.
Hall, 1 S. & S. 249 ; and in default that the bill be dismissed with costs :
S. C.'; Chichester v. Ewnter, 3 Beav. 491 ; Eolcombe v. Trotter, 9 Jur. 174 ;
Minde v. Morton, 13 W. E. 401.
Nor was it any answer that there was no legal representative of the deceased
pit ; 8auer v. Deaven, 16 Beav. 30.
No order was usually made as to the costs of the motion : Hinde v. M(yrton,
13 W. E. 401.
Beath of a Deft — Compulsory Order.
Upon motion, &c., by counsel for A. B. and C. D., the legal personal
representatives of the deceased Deft E. P., and upon hearing counsel
for [or, upon reading an affidavit of' service of notice of this motion
on] the Pits, Let the Pits, within — days from the date [or, service]
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90 CHANGES OP INTEREST.
of this order, obtain an order to carry on the proceedings in this action,
against the said A. B. and C. D. Ajid in default thereof Let the
Pits' action stand dismissed against the said Deft for want of prosecu-
tion, without costs and without further order.
Under the former practice, upon the death of a deft, Ms representatives were
entitled to move before decree that the pits should revive within a limited time,
and that in default the pits' bill be dismissed without costs : Burnell v. Wd-
lington, 6 Sim. 461 ; JS'orton v. White, 2 De Qt. M. & G. 678 ; Gross v. Gross,
2 New Eep. 351. See also Mills v. Dudgeon, 1 W. R. 514 ; Price v. Berrington,
11 Beav. 90 ; Oldfldd v. Cdblett, 20 Beav. 563.
Marriage of Female sole Pit — Compdsory Order.
Upon motion, &c., by counsel for the Defts, and upon hearing counsel
for [or, or upon reading an affidavit of service of notice of this motion
on] A. B. [the husband], Let the said A. B., within — days from
the date [or, service] of this order obtain an order to carry on the pro-
ceedings in this action against the Defts. And in default thereof Let
the Pits' action stand dismissed out of this Court for want of prosecu-
tion against the Defts without further order [with costs to be taxed
and paid, &c.].
Upon the marriage of a female sole pit, the defts were entitled to call upon the
husband to revive the suit, and in default that the bill be dismissed. In Johnson
V. Horlock, 3 Beav. 294, n., the order was made with costs. In Wilkinson v.
Gharlesworth, 3 Beav. 297, n., without costs. See also Johnson v. Gallagher,
7 Jur. (N.S.) 273 ; Greenough- v. Shorrork, 4 New Eep. 40.
Death of Next Friend — Compulsory Order.
Upon motion, &c., by counsel for the Defts, and upon hearing counsel
for [or, upon reading an affidavit of service of notice of this motion
on] A. B., the husband of the Pit, Let the Pit, within — days from
the date [or, service] of this order, appoint a new next friend by whom
she may further prosecute this action. And in default thereof Let
the Pits' action stand dismissed out of this Court for want of prosecu-
tion, and without further order.
Where, under the former practice, a suit was instituted by the next friend of
a married woman, a" deft was entitled, upon the death of the next friend before
decree, to an order that the married woman obtain a new next friend, and in
default that the bill should be dismissed : Barlee v. Barlee, 1 S. & S. 101.
Banlcruptcy of Pit — Gompalsory Order.
Upon motion, &c., by counsel for the Defts, and upon hearing counsel
for [or, upon reading an affidavit of service of notice of this motion on]
the Pit, and A. B. and C. D., the assignees of the said Pit, Let the said
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CHANGES OF INTEREST. 91
A. B. and 0. D., within — days from the date [or, service of] this
order, obtain an order to carry on the proceedings in this action against
the Defts. And in default thereof Let the Pits' action stand dismissed
out of this Court, without costs, for want of prosecution, and without
further order.
Where, under the former practice, a suit became defective by the bankruptcy
of a sole pit, the defts might before decree obtain an order that the assignees should
within a lunited time (usually three weeks) take proper supplemental proceedings
against the defts, and in default that the bill be dismissed : Lord Himtingtower
V. Sherbom, 5 Beav. 380.
Notice of the defts' motion should be served upon the bankrupt pit as well as
upon his assignees : Vestris v. Eoojper, 8 Sim. 570 ; Glark v, Tipping, 16 Beav.
The bankrupt pit should not be served with notice to dismiss for want of pro-
secution, but with notice that the assignees should within a given time obtain the
order to carry ou the proceedings, and in default that the action be dismissed : see
BoUnson v. Norton, 10 Beav. 484.
There is no fixed period of time within which the deft must make the motion :
Sharp V. EuUett, 2 S. & S. 496.
The deft wiU'be entitled to the same relief where the pit has taken steps in the
suit without giving notice of the bankruptcy, and thus led the deft to incur costs :
MicUqw V. Elmore, 4 De G. & J. 208.
Where the bankruptcy of the pit occurred after decree a deft was not entitled
under the former practice to move that in default of the assignees taking supple-'
mental proceedings the bill be dismissed : Sharp v. EuUett, 2 S. & S. 496.
The dismissal was without costs : Sharp v. EuUett, supra : but see Daniel
V. Ewrding, 1 Y. & C. 436.
After decree in a suit a deft was entitled to an order that the assignees of a
bankrupt pit should take the proper supplemental proceedings, and in default
that the proceedings be stayed : Whi^ore v. Oxbwrrow, 1 Coll. 91 ; Clarh v.
Tipping, 16 Beav. 12.
Banhriuptey of Go.-Plt — Compulsory Order.
Upon motion, &c., by counsel for the Defts, and upon hearing counsel
for [or, upon reading an affidavit of service, &c., on] the Pits, except
the Pit A. (the bankrupt), Let the Pits, other than the Pit A., within
— days from this date [or, service of this order] obtain an order to
Dairy on the proceedings in this action against the Defts ; and in de-
fault thereof Let the Pit's action stand dismissed out of this Court with
costs, &o., for want of prosecution, and without further order.
Where the defect in the suit had been caused by the bankruptcy of a co-pit the
rules, both as to the notice to be given to the bankrupt pit and as to costs, differed
from those in the case of a sole pit.
Upon the bankruptcy of a co-pit, no notice of motion has been required to be
given to the bankrupt pit, and the notice will not be irregular if it purports to be
" for want of prosecution ": Gaddick v. Masson, 1 Sim. 501.
The dismissal of the bill upon the bankruptcy of a co-pit was without costs,, as
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92 CHANGES OP INTBEEST.
in the ordinary case of dismissal for want of prosecution : Ward v. Ward, 8 Beav.
207 ; Eilmingtm v. Pratt, 1 Hare, 632.
Where an order had been made directing a co-pit to file a supplemental bill
within a given time, it was held that he was bound to prosecute as well as file the
supplemental suit : Wa/rd v. Ward, 11 Beav. 159.
Where a co-pit became bankrupt after decree, a deft was entitled to an order
that the solvent pit should cure the defect or let the proceedings be stayed.
Bankruptcy of a Deft — Compdsory Order.
Upon motion, &o., ty counsel for the Deft, A. B. (the bankrupt),
and upon hearing counsel for [or, upon reading an affidavit of service,
&c., on] the Pits, Let the Pits within — days from the date of [or,
service of] this order, obtain an order to carry on the proceedings
in this action against the assignees of the bankrupt Deft A. B. ; and
in default thereof, Let the Pits' action stand dismissed as against the
Deft A. B. for want of prosecution, without further order, with costs to
be taxed and paid, &a.
Where a suit became defective by the bankruptcy of a deft before decree, he
might, under the former practice, and notvrithstanding his bankruptcy, have moved
for the usual order of dismissal : Monteith v. Taylor, 9 Ves. 615.
And the deft was entitled in most oases, notwithstanding his bankruptcy, to an
order of dismissal with costs: Monteith v. Taylor, 9 Ves. 615; Blachmore v.
Smith, 1 Mao. & G. 80 ; Bdbson v. Earl Devon, .3 Sm. & G. 227 ; Leoi v. Heri-
tage, 26 Beav. 560.
Sometimes, however, the dismissal has been ordered to be without costs : Kemhdll
V. Walduck, 1 Sm. & G. App. 27.
The Court would not enter into the merits of the case for the purpose of deter-
mining whether the bill should be dismissed with or without costs ; but for that
purpose only considered the conduct of the parties in the prosecution of the cause :
South Staffordshire By. Co. v. Ball, 16 Jur. 160 ; Wallis v. WalUs, 4 Drew. 458.
Oedees dispensing with, oe appointing, Eepeesentatfves.
Dispensing with Representatives.
Upon motion, &o., by counsel for, &c., and upon reading an affidavit
of — , whereby it appears that A. B. is dead and has left no legal per-
sonal representative, Let this action be continued notwithstanding the
absence 6f any person representing the estate of the said A. B.
Appointing Bepresentatives.
Upon motion, &c., and upon reading, &o. [see form above']. Let —
be appointed to represent the estate of the said A. B. for the purposes
of this action.
If in any suit or other proceeding before the Court it appears to the Court that
any deceased person who was interested in the matters in question has no legal
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CHANGES OF INTEREST. 93
personal representative, it shall be lawful for the Court either to proceed in the
absence of any person representing the estate of such deceased person, or to appoint
some person to represent such estate for all the purposes of the suit or other pro-
ceeding, on such notice to such person or persons, if any, as the Court shall think
fit: 15 & 16 Vict. c. 86, s. 44.
Orders under this section are usually made by motion ex parte. But before the
order is drawn up notice should be given to the parties entitled to administer :
Davies v. Boulcott, 1 Dr. & Sm. 23 ; 8 W. E. 205 ; and see Chaffers v. Eeadlam,
9 Hare, App. 46.
This section does not apply whfere the estate to be represented is the very estate
which is being administered by the Court : Silver v. Stein, 1 Dr. 295 ; Oroves v.
Lane, 16 Jur. 1061 ; James v. Aston, 2 Jur. (N.S.) 224.
The section is not intended to apply to a case where there is no difficulty in
obtaining representation : Longr. Stone, 1 Kay, App. 12. Nor where the interest
of the person to be bound is wholly unrepresented in the suit : Cox v. Stephens,
11 W. B. 929.
The section does not enable the Court to dispense wiih the representative of a
irastee who has active duties to perform : Fowler v. Bayldon, 9 Hare, App. 78.
The proper person to be appointed under this section is the person who would
be appointed administrator ad litem: Dean of Ely v. Qa/yford, 16 Beav. 361.
The order appointing cannot be made without the consent of the person sought
to be appointed : Hill v. Bonner, 26 Beav. 372.
The order may be made at the hearing : Eewetson v. Todhunter, 22 L. J. (Ch.)
76 ; Mendes v. OuedaMa, 10 W. E. 485.
Where a person has been appointed to represent the estate of a deceased party,
an order of revivor by or against such person was. necessary under the 15 & 16
Vict. 0. 86 : Joint Stock Discmmt Company v. Brown, L. E. 8 Eq. 376.
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CHAPTBK XVI.
ENPOECING OEDEES AND JUDGMENTS.
MODE OF ENFOECING.
" A judgment for the recovery by or payment to any person of money, may be
enforced by any of the modes by which a judgment or decree for the payment of
money of any Court whose jurisdiction is transferred by this Act might have been
enforced at the time of the passing thereof " : Jud. Rules, Order 42, rule 1.
" Every order of the Court or a judge, whether in an action, cause, or matter,
may be enforced in the same manner as a judgment to the same effect " : Jud.
Rules, Order 42, rule 20.
Foe the Payment of Money into Court.
" A judgment for the payment of money into Court may be enforced by writ
of sequestration, or, in cases in which attachment is authorized by law, by attach-
ment " : Jud. Rules, Order 42, rule 2.
For the Eecoybry or Deuvery of Land.
" A judgment for the recovery or for the delivery of the possession of land
may be enforced by writ of possession " : Jud. Rules, Order 42, rule 3.
Foe the Eecoveey op Property other than Land or Money.
" A judgment for the recovery of any property other than land or money, may
be enforced :
By writ for delivery of the property :
By writ of attachment :
By writ of sequestration."
Jud. Rules, Order 42, rule 4.
To do an Act other than the Payment of Money, or to abstain
FROM DOING, &C.
" A judgment requiring any person to do an act other than the payment of
money, or to abstain from doing anything, may be enforced by writ of attach-
ment, or by committal " - Jud. Rules, Order 42, rule 5.
Belief subject to Condition.
" Where a judgment is to the effect that any party is entitled to any relief sub-
ject to or upon the fulfilment of any condition or contingency, the party so
entitled may, upon the fulfilment of the condition or contingency, and demand
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BNPOECmG OKDEES AND JUDGMENTS. 95
made upon the party against whom he is entitled to relief, apply to the Court or
a judge for leave to issue execution against such party.
" And the Court or judge may, if satisfied that the right to relief has arisen
according to the terms of the judgment, order that execution issue accordingly,
or may direct that any issue or question necessary for the determination of the
rights of the parties he tried in any of the T^ays in which questions arising in an
action may be tried " : Jud. Eules, Order 42, rule 7.
Execution against Partners,
" Where the judgment is against partners in the name of the firm, execution may
issue in manner following :
(a.) Against any property of the partners as such :
(6.) Against any person who has admitted on the pleadings that he is, or
has been adjudged to Tje, a partner :
(c.) Against any person who has been served, as a partner, with the writ of
summons, and has failed to appear :
"If the party who has obtained judgment claims to be entitled to issue
execution against any other person as being a member of the firm, he may apply
to the Court or a judge for leave so to do ; and the Court or judge may give such
leave if the liability be not disputed ; or if such liability be disputed, may order
that the liability of such person be tried and determined in any manner in which
any issue or question in an action may be tried and determined " : Jud. Eules,
Order 42, rule 8.
Writ of Execution, Definition of, &c.
" In these rules the term ' writ of execution ' shall include writs of fl. fa., capias,
elegit, sequestration, aod attachment, and all subsequent writs that may issue for
giving effect thereto. And the term ' issuing execution against any party ' shall
mean the issuing of any such process against his person or property as under the
preceding rules of this Order shall he applicable to the case " : Jud. Eules, Order
42, rule 6.
For mode of issuing writ, indorsements on, and poundage for, see Jud. Eules,
Order 42, rules 9—14.
Writ — For what Time in force.
A writ of execution, if unexecuted, shall remain in force for one year only from
its issue, unless renewed, &c. See Jud. Eules, Order 42, rule 16.
Within what Time may issue.
" As between the original parties to a judgment execution may issue at any
time within six years from the recovery of the judgment " : Jud. Eules, Order 42,
rule 18.
"Where six years have elapsed since the judgment, or any change has taken
place by death or otherwise in the parties entitled or liable to execution, the
party alleging himself to be entitled to execution may a.pply to the Court or a
judge for leave to issue execution accordingly. And such Court or judge may, if
satisfied that the party so applying is entitled to issue execution, make an order
to that effect, or may order that any issue or question necessary to determine the
rit'hts of parties shall be tried in any of the ways in which any question in an
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96 ENFORCING ORDERS AND JUDGMENTS.
action may be tried. And in either case such Court or judge may impose such
terms as to costs or otherwise as shall seem just " : Jud. Rules, Order 42, rule 19.
Enfoecibg Orders by or against Persons not Parties.
" In cases other than those mentioned in rule 18, any person not being a party
in an action, who obtains an order, or in whose favour any order is made, still be
entitled to enforce obedience to such order, by the same process as if he were a
party to the action ; and any person not being a party in an action, against whom
obedience to any judgment or order may be enforced, shall be liable to the same
process for enforcing obedience to such judgment or order, as if he were a party to
the action": Jud. Rules, Order 42, rule 21.
Proceeding by Audita Querela.
" No proceeding by audita querela shall hereafter be used ; but any party
against whom judgment has been given may apply to the Court or a judge for a
stay of execution or other relief against such judgment, upon the ground of facts
which have arisen too late to be pleaded ; and the Court or judge may give such
relief, and upon such terms as may be jtist " : Jud. Rules, Order 42, rule 22.
Existing Modes of enforcing Orders and Judgments.
" Nothing in any of the rules of this order shall take away or curtail any right
heretofore existing to enforce or give effect to any judgment or order in any
manner, or against any person or property whatsoever " : Jud. Rules, Order 42,
rule 23, •
Order in which Writs of Execution may be issued.
" Nothing in this order shall affect the order in which writs of execution may
be issued " : Jud. Rules, Order 42, rule 24.
Enforcing by Writ of Pi. Fa. and Elegit — Venditioni Exponas, &c.
" Every person to whom any sum of money or any costs shall be payable under
a judgment, shall, immediately after the time when the judgment was duly
entered, be entitled to sue out one or more writ or writs of fieri facias, or one or
more writ or writs of elegit, to enforce pajrment thereof, subject nevertheless as
follows : —
(a) If the judgment is for a payment within a period therein mentioned, no
such writ as aforesaid shall be issued until after the expiration of such
period.
(&) The Court or judge at the time of giving judgment, or the Court or a
judge afterwards, may give leave to issue execution before, or may stay
execution until any time after, the expiration of the periods herein-
before prescribed " : Jud. Rules, Order 42, rule 15.
" Writs of fieri facias and of elegit shall have the same force and efl«ct as the
like writs have heretofore had, and shall be executed in the same manner in which
like writs have heretofore been executed." Jud. Rules, Order 4, rule 13.
" Writs of venditioni exponas, distringas, nuper vice comitem, fieri facias, de
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ENFORCING ORDERS AND JUDGMENTS. 97
bonis ecolesiasticis, sequestrari facias de bonis ecolesiastiois, and all other writs
in aid of a writ of fieri facias or of elegit, may be issued and executed in the
same cases and in the same manner as heretofore." Jud. Rules, Order 43, rule 2,
Where an order had been made under the Winding-up Acts directing the pay-
ment of a call into the Bank of England to the account of the official liquidator
in the form prescribed by the Order of the ll.th of November, 1862, it was held
that in order to enforce payment by fi. fa. the liquidator must obtain an order
for payment to himself : Re Leeds Banking Company, L. R. 1 Uh. 150.
A four-day order, and not a fi. fa., is the proper process to enforce payment by
a receiver : Whitehead v. Lynes, 34 Beav. 161 ; affirmed, 12 L. T. (N.S.) 332.
" Where it appears upon the return of any writ of fi. fa. that the sheriff or
other officer has by virtue thereof seized, but not sold, any goods of the person
directed to pay the sum of money or costs, the person to whom the same is pay-
able is at liberty immediately after the writ with the ret\u:n has been filed as of
record, to sue out a writ of venditioni exponas." Cons. Ord. 29, rale 9.
If a sufficient sum to answer the demand of the person issuing a common writ
of fi. fa. is not levied under it he is entitled to have a second writ issued into the
same or another county. Braith. Pr. 196»; Spencer v. Allen, 2 Phil. 215 ; 11 Jur.
93.
Where part only of a debt directed to be paid by an order had been levied
under a fi. fa., the Court refused to make an order for the payment of the balance ;
but directed an inquiiy as to the amount due, and oMered payment withiu ten
days after date of the chief clerk's certificate. Dan. 5th ed. 926, citing Hipkins
V. Eipkins, 32 L. J. (Ch.) 512.
" If upon the return of any writ of fi. fa. or elegit it appears that the person
against whom the writ was issued is a beneficed clerk, and has no goods or
chattels, nor any lay fee in the bailiwick of the sheriff to whom the writ was
directed, the person to whom the sum of money or costs mentioned in the writ is
payable is immediately after the writ with the return has been filed as of record to
be at liberty to sue out one or more writ or writs of fi. fa. de bonis ecclesiasticis,
or one or more writ or writs of sequestrari facias." Cons. Ord, 29, rule 11.
A writ of sequestrari facias may be issued after a return by sequestrators that
the person against whom the commission of sequestration was issued is a beneficed
clerk, and that he has no lay property : Allen v. Williams, 2 Sm. & Giff,' 455 ;
Norton v. Pritchard, 2 Sm. & Giff. 455, n.
Enforcing by Sequbsteation.
Sequestration without Order.
" Where any person is by any judgment directed to pay money into Court, or
to do any other act in a limited time, and after due service of such judgment,
refuses or neglects to obey the same according to the. exigency thereof, the person
prosecuting such judgment shall at the expiration of the time limited for the per-
formance thereof be entitled, without obtaining any order for that pm-pose, to
issue a writ of sequestration against the estate and effects of such disobedient
person. Such writ of sequestration shall have the same effect as a writ of seques-
tration in Chancery has heretofore had, and the proceeds of such sequestration
may be dealt with in the same manner as the proceeds of writs of sequestration
have heretofore been dealt with by the Court of Chancery." Jud. Rules, Order 47,
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98 ENFORCING ORDERS AND JUDGMENTS.
Skquesteation by Order.
Whereas by an order dated, &o., it was ordered [recite so much of
order as was required to he performed^. Now upon motion, &c., and
upon reading, &c., Let a sequestration issue directed to certain com-
missioners to be therein named to sequester tbe said — personal estate,
and the rents and profits and issues of his real estate, unless the said
— shall [state act required to he done'] clear his contempt, and this Court
make other order to the contrary.
Where a person is taken or detained in custody under a writ of attachment
without obeying the order, the person prosecuting the order shall, upon the
sheriff's return that the disobedient person has been so taken or detained, be en-
titled to a commission of sequestration against his estate and effects. And ia
case the sheriff shall make the return non est inventus to the writ of attachment,
the person prosecuting the order shall be entitled, at his option, either to a com-
mission of sequestration in the first instance, or otherwise to an order for the
serjeant-at-arms : see Gen. Ord., Jan. 7, 1870, rule 6.
Where the party against whom the writ of sequestration was required was
shewn to be abroad, the Court dispensed with the writ of attachment altogether :
Be East of England Sank, 2 De G. & Sm. 284! cited in Morgan, 514.
And where the writ of attachment was by mistake issued into a wrong county,
and a writ of non est inventus was returned, the Court, on proof of the person
sought being abroad, has ordered a sequestration to issue without another attach-
ment : Hodgson v. Sodgson, 23 Beav. 604, cited in Morgan, 515.
The sequestration is usually directed to four persons, and they should be
responsible persons : Harr. by Newland, cited in Daniell, 946. But they need not
be professional persons : Braith. Pr. 240.
The seizure of the person under an attachment does not destroy the right to
proceed against the property.
If the sheriff finds thb person in contempt, he must either send him to prison,
or if already in prison, lodge a detainer against him
The party prosecuting the contempt may leave the prisoner in prison until he
clears his contempt by performing the act required and paying the costs of the
contempt: Braith. Pr. 284.
Whether an order for sequestration is now necessary, quaere.
Order for Serjeant-at-Arms.
Whereas by an order dated, &o. Now upon motion, &c., and upon
reading the said order and the attachment issued against — for his
contempt, &o., and whereby it {ippears that the said sheriff hath re-
turned non est inventus thereon, Let the serjeani>at-arms attending
this Court apprehend the said — and bring him to the Bar of this
Court to answfer his said contempt. And thereupon such further order
shall, be made as shall be just.
If the serjeanbrat-arms cannot apprehend the party in contempt, the order for
the serjeant-at-arms will not be discharged, nor the contempt thereupon, without
a certificate under the hand of the serjeant-at-arms that his fees have been paid ;
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ENFORCING ORDERS AND JUDGMENTS. 99
and after the order has heen drawn up and passed, no private or other agreement
can be made between the party prosecuting the contempt and the person standing
in contempt, or on their behalf, for a compromise of the suit or a discharge of the
contempt, unless such satisfaction be made to the serjeant-at-arms, and a cer-
tificate thereof be produced in Court : Cons. Ord. 30, rule 2.
If the serjeant-at-arms apprehends the party, he brings him to the Bar of the
Court, and he is thereupon turned over to HoUoway Prison ; and upon proof of
such committal — that is, by production of the keeper's certificate — the party
prosecuting the contempt may apply by motion as of course for an order for
sequestration : Braith. Pr. 288.
If the serjeant-at-arms finds the party already in custody, he makes a return
accordingly, and thereupon the party prosecuting the contempt may apply to the
Court for a habeas, upon which the party in custody will be brought to the Bar
of the Court and turned over to HoUoway Prison ; and upon such committal the
person prosecuting the contempt may obtain, by motion as of course, an order for
a sequestration.
Order to Turn Over when Prisoner brought up by Serjeant-at-Arms or by
Habeas.
(The Deft) A. being tMs day brought to the bar, of this Court by the
serjeant-at-arms attending this Court [or if brought up by habeas, by
virtue of a writ of habeas corpus cum causis directed to the sheriff of — ,
or, the Governor of HoUoway Prison] to answer his contempt in not
[state the default in respect of which the process issued'], and still persist-
ing in his said contempt. Now upon motion, &o., Let the said — be
turned over [or, remanded] to HoUoway Prison, and remain there
until he shall [state act required to be done] clear his contempt and
this Court make other order to the contrary. •
Order for Habeas when Prisoner has been detained in Custody,
Whereas by an order dated the — day of — [recite so much of the
order required to be performed]. Now upon motion, &c., by counsel for
— , and upon reading the said order, the writ of attachment issued
under the said order directed to the sheriff of — , and the return of the
said sheriff indorsed upon the said writ, and whereby it appears that
— is in his custody [or if order has been made for serjeant-at-arms :
Whereas by an order dated the — day of — , it was ordered that the
serjeant-at-arms attending this Court should apprehend — and bring
him to the bar of this Court to answer his contempt in not, &c. ; and
upon reading the said order and the certificate of the keeper of —
prison, whereby it appears that the said — is detained in custody],
Let a writ oi habeas corpus cum causis issue direct 3d to the sheriff of
— [or to the keeper of — prison], at the return theiool", to bring the
said — to the bar of this Court to answer the said contempt.
It has been said that the party in contempt should be brought to the bar of the
Court by habeas where the serjeant-at-arms returns that he is in prison, for that
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100 ENFORCING ORDERS AND JUDGMENTS.
•Jtherwise it is not clear that a sequestration could regularly issue : Seton, 1224,
citing C(mrt v. Barr, 2 S. & S. 452. But this is a doubtful proposition : see same
case on appeal, 2 Russ. 161.
Where a party is brought up to this Court by virtue of any writ of habeas duly
issued from the office of the clerk of records and writs, and by reason of the
pressure of other business, or from any other cause, the hearing of the cause or
matter in which such party is concerned is postponed to a future day, a new writ
of habeas may be issued for such future day, if the Court shall so direct, without
payment of any fee : Cons. Ord. 30, rule 3.
Where, under the provisions of the last-mentioned rule, the matter is postponed,
the registrar indorses on the order for habeas : " Let another habeas issue, returu-
able on the — day of — at — o'clock in the — noon :" Seton, 1223.
Order for Sequestration after Order for Serjeant-at-Armg.
Whereas by an order dated, &c., it was ordered [recite so much, of
order as was required to he performed'], and whereas by an order dated, &o.,
it was ordered that the serjeant-at-arms attending this Court should
apprehend — and bring him to the bar of this Court to answer his con-
tempt in not complying with the said order dated the — day of — .
Now upon motion, &c., by counsel for — , and upon reading the said
orders dated the — day of — and — day of — , and the return of the
serjeant-at-arms, whereby it appears that the said — cannot be found,
Let a commission of sequestration, &c. [see page 98].
SbQUESTRATIOS^ AGirNST CoRPOEATIONS.
Order Nisi.
Upon motion, &c., it was alleged that a writ of distringas [and an
alias and pluries distringas] having issued against — [style of corpora-
tion] directed to the sheriff of — , for not [state from the writ what the
corporation was ordered to do] pursuant to the said order dated, &o.,
the said sheriff has returned [state the return], and the said corporation
persisting in their said contempt ; and upon reading the said order,
writ, and return thereon, Let a commission of sequestration issue
directed to certain commissioners to be therein named to sequestrate
the personal estate of the said corporation, and the rents, profits, and
issues of their real estate until they shall pay the said sum of £ — [or,
state the act required to be done] clear their contempt, and this Court
makes other order to the contrary, unless the said corporation having
personal notice thereof shall within seven days after such notice shew
unto this Court good cause to the contrary.
Order Nisi made absolute.
Whereas by an order dated, &c., [recite order nisi], Now upon motion,
&c., by the counsel for — , who alleged that the said — [the corpora-
tion] has been duly served with the said order, notwithst£),nding which
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ENFORCING ORDERS AND JUDGMENTS. 101
the said — has not [state tJie act required to he performed], as by affidavit
of — appears, and no cause having heen shewn against the said order
as by the registrar's certificate also appears ; and upon reading the said
order, affidavit, and certificate. Let a commission of sequestration issue
directed to certain commissioners to be therein named to sequester the
said — personal estate, and the rents, issues, and profits of their real
estate, until they shall [state act required to he performed], and this
Court make other order to the contrary.
A decree or order may be enforced against a corporation aggregate by distringas
and sequestration.
The writ of distringas is directed to the sheriff, or other officer having jurisdic-
tion, and commands him to distrain the lands, tenements, goods, and effects of
the corporation.
If the sheriff returns nulla lona, an alias distringas may be sued out, and if
a similar return is made, a pluries distringas may be issued.
If the sheriff returns " issues " to the first or second distringas, or " issues," or
nulla hona to the third.
If the corporation has property the sheriff usually levies 403. tmder the first
writ, £4 under the second, and the whole property of the corporation under the
third. Hinde; 140, cited in Dan. 5th ed. 402.
The order nisi will be granted upon the return " issues 40s.," although the whole
amount due might have been levied under the writ of distringas : Harvey v. East
India Company, Reg. Lib. A. 1700, fo. 506 ; Lowton v. Mayor of Colchester,
3 Mer. 543.
Enforcing by Attachment.
" A writ of attachment shall have the same effect as a writ of attachment issued
out of the Court of Chancery has heretofore had." Jud. Eules, Order 44, rule 1.
" No writ of attachment shall be issued without the leave of a Court or a judge,
to be applied for on notice to the party against whom the attachment is issued."
Jud. Rules, Order 44, rule 2.
Attachment for Disobedience of Order, other than Payment of Money
or Costs.
Whereas by an order dated, &c. [recite the part of order to he per-
formed, or the act to he abstained from]. Now upon motion, &c., and upon
reading the said order, an affidavit of — of service of notice of this
motion on — , Let the said — be at' liberty to issue an attachment
against the said — for his contempt in not having [state the act required
to be done or to he abstained from]..
Where any person is by a decree or order made in any suit or matter directed
to do any act other than or besides the payment of money or costs, and after due
service of such decree or order refuses or neglects to do such act, according to the
exigency of the same decree or order, the person prosecuting such decree or order
shall, at the expiration of the time limited for the performance thereof, be entitled
[upon notice, see above] to a writ or writs of attachment against the disobedient
person. General Order, 1870, rule 6.
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102 ENFOECING OEDEBS AND JUDGMENTS.
The Debtors Act, 1869.
AUachmenta under Sect. i.
Whereas by an order dated, &o. [recite part of order to he per-
formed]. Now upon motion, &c., and upon reading the said order and
affidavit of, &c., and an affidavit of service of notice of this motion on
— , and it appearing to the satisfaction of the Court that the said —
has made default in payment of the sum of £ — directed to be paid to
the said — [or, into Court to the credit of, &c.J as provided by the
said order, and that such default is the default of a trustee [or, person
acting in a fiduciary capacity] ordered to pay a sum in his possession
or under his control within the meaning of the Debtors Act, 1869 [or,
that such default is the default by an attorney or solicitor ordered to
pay in a limited time costs for misconduct as such solicitor, or, to pay
in a limited time a sum of money in his character of an officer of the
Court], Let the said — be at liberty to issue an attachment against
the said — for his contempt in not having paid the sum of £ — pur-
suant to the said order.
Attachment against Solicitor — On Taxation of his Bill against his Client.
Whereas by an order dated, &c., it was referred to the taxing
master to tax, &o., and it was ordered (inter alia) that the taxing
master should certify the amount due from G. P. to E. B. (the solicitor),
or from the said E. B. to the said G. P., and that the amount so to be
certified should be paid within — days after service of the said order
and of the taxing master's certificate. Now upon motion, &c., and
upon reading the said order and taxing master's certificate, and an
affidavit of service of the said order and certificate on the said E. B.,
and an affidavit of service of notice of this motion on — , and it appear-
ing to the satisfaction of the Court that the said E. B. has made
default in payment of the sum of £ — , part of the money certified,
&c., and that such default is a default made by a solicitor of this
Court who has been ordered to pay a sum of money in his character
of an officer of this Court within the meaning of the Debtors Act,
1869, Let the said G. P. be at liberty to issue an attachment against
the said E. B. for his contempt in not having paid the said sum of
£ — pursuant to the said order.
Teustees and Solicitors.
Exceptions from Provisions of Debtors Act, 1869.
The following cases are excepted from the operation of the Debtors Act, 1869,
abolishing imprisonment for default in payment of a sum of money :
1. Default in payment of a penalty, or sum in the nature of a penalty, other
than a penalty in respect of any contract :
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ENFORCING ORDEES AND JUDGMENTS. 103
2. Default in payment of any sum recoverable summarily before a justice or
justice of the peace :
3. Default by a trustee or person acting in a fiduciary capacity, and ordered to
pay by a Court of Equity any sum in bis possession or under his control :
4. Default by an attorney or solicitor in payment of costs when ordered to pay
costs for misconduct as such, or in payment of a sum of money when ordered to
pay the same in his character of an officer of the Court making the order :
5. Default in payment for the benefit of creditors of any portion of a salary or
other income in respect of the payment of which any Court having jurisdiction
in bankruptcy is authorized to make an order :
6. Default in payment of sums in respect of the payment of which orders are
in the Act authorized to be made : 32 & 33 Vict. c. 62, s. 4.
"Where by any decree or order a trustee or person acting in a fiduciary
capacity is ordered to pay in a limited time any sum of money in his possession
or under his control, or a solicitor is ordered to pay in a limited time costs for
misconduct as such solicitor, or to pay in a limited time a sum of money in his
character of an officer of the Court, and such trustee, person, or solicitor, after due
service of such decree or order neglects or refuses to pay siich money or costs ac-
cording to the exigency of such decree or order," the person prosecuting such
decree or order is, at the expiration of the time limited thereby for the perform-
ance thereof, entitled [at his option either to a commission of sequestration, or] to
move for an attachment: See Gen. Ord. 1870, rule 7; Jud. Rules, Order 44, rule 2.
Where a trustee has made default in payment of a sum of money ordered by
the Court to be paid and admitted to have been in his possession, an attachment
may be ordered against him, although he may have spent the money before the
order and be unable to pay : Middleton v. Chichester, L. B. 6 Ch. 152.
It need not appear that the money ordered to be paid by him had at some time
been in his sole possession or control : S. C. ; Evans v. Bear, L. R. 10 Ch. 76.
No attachment can be issued against a trustee on an order directing payment of
principal and interest not distinguished : Middleton v. Chichester, supra.
A creditor who has received money from a bankrupt by way of fraudulent
preference, and has been ordered to repay it to the bankrupt's estate, is not a
person holding a fiduciary capacity under the 4th section : Re Chapmcm & Shaw,
L. B. 8 Ch. 231.
Default by a solicitor in payment of a balance found due to the client upon
taxation under the common order to tax his solicitor's bill is a default within the
exceptions of the Act : Re Bush, L. B. 9 Eq. 147.
And where the Court has ordered a man to pay a sum of money, whether in
the shape of costs or anything else, a debt is constituted within the meaning of
section 5 : Eewitson v. Sherwin, L. R. 10 Eq. 53.
But where the solicitor is ordered to pay costs simply as an unsuccessful
litigant, no attachment will be ordered to be issued : Re ffope, L. R. 7 Ch. 523.
If, however, the solicitor is ordered, in his character of a solicitor, to pay a
sum of money with costs, the costs will be considered as included in the sum
ordered to be paid. S. C.
Where subsefluently to an order directing payment by a solicitor an arrange-
ment interfering with the terms of the order was come to between the parties and
broken by the solicitor, an attachment was not allowed to issue for non-compliance
with the order : ffarvey v. Harvey, L. E. 16 Eq. 324.
Where by any decree or order a solicitor is ordered to pay costs for misconduct
as snch solicitor, without a time being limited for such payment, and does not
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104 ENFORCING OEDEES AND JUDGMENTS.
upon due service of a'subpoena for such costs make such payment, the person to
whom such costs are payable is immediately, upon such default, entitled [at his
option either to a commission of sequestration, cmte, p. 98] or to move for a writ
of attachment : Gen. Ord., 1870, rule 8 ; Jud. Eules, Order 29, rule 2.
Committal — Contempt of Couet.
Orders for Committal.
Order Nisi.
Upon motion, &c., and upon reading, &c., Let — stand committed
to HoUoway Prison for contempt of this Court in, &o.', as appears by
tlie aifidavits of, &o., unless he the said — shall shew good cause to the
contrary before His Lordship — [name of jttdge] at the sitting of the
Court in — on the — day of — .
Order Absolute.
Whereas by an order dated, &o. [recite order^, and the said — not
attending this Court this day pursuant to the said order, although
duly served with the said order, as by affidavit of — appears, and no
cause being shewn to the contrary. Let the said — stand committed to
HoUoway Prison for his said contempt. See Lechmere Charlton's Case,
2 My. & Cr. 316, 343.
Order for Committal — Notice of Motion.
Whereas by an order dated, &c. [recite part of order for breach of
which committal is soiughL'] Now upon motion, &c. [and upon hearing
counsel for — ] and upon reading an affidavit of, &c. [and an affidavit
of service of notice of this motion on — ], and this Court being of
opinion upon consideration of the facts disclosed by the evidence
aforesaid that the said — has been guilty of a contempt of this Court
by, &c.. Let the said — stand committed to HoUoway Prison for his
said contempt.
Where the Court itself takes notice of the contempt the order nisi has usually
been made. And in other cases the order for committal has been made on notice
of motion.
Special Contempts.
" Any one who uses violence or abusive language to a person serving the
process or orders of the Court, or uses scandalous or contemptuous words against
the Court, or the process thereof, shall be liable to be committed upon motion, on
notice to the person so offending " : Cons. Ord. 42, r. 2.
It is a special contempt to do acts disturbing the free course of justice, or to
attack parties to the cause, or their witnesses : Fool v. Sacheverell, 1 P. Wms.
675 ; Anon., 2 Atk. 469 ; lioach v. Qarvan, 2 Dick. 794 ; Lechmere Cliarlton's
Case, 2 My. & Cr. 316 ; Littler v. Thompson, 2 Beav. 129 ; Coleman v. West
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ENFORCING OEDEES AND JUDGMENTS. 105
Hartlepool Sy. Co., 8 W. R. 734 ; Daw v. Eley, L. E. 7 Eq. 49 ; Tichbome v.
Tichhome, 18 W. E. 621.
So, too, it is a special contempt to publish while a cause is pending comments
upon the evidence calculated to prejudice the parties' cases ; or to publish with or
without comment the pleadings, evidence, or any petition or ex parte statement in
any pending cause or matter : Dan. 5th ed. 932, and cases there cited.
Service op Oeder.
The service of the order to shew cause, or of the order nisi, or of the notice of
motion for committal, must in general be personal : Sope v. Hope (L. JJ.), 17
W. E. 363.
But substituted service may be directed : Leehmere Charlton^s Case, 2 My. &
Cr. 316 ; Order, supra.
DlSCHAEGE OF PbISONER COMMITTED FOR COKTEMPT.
Upon motion, &c., and it appearing [«ia<e the process issued and
that the order or judgment has since heen complied wiiA] that the said
— is desirous of clearing his said contempt, and upon reading [evi-
dence], Let the said — upon payment or tender of the costs of his
said contempt [to be taxed by the taxing master in case the parties
differ] be discharged out of the custody of the governor of HoUoway
Prison as to his said contempt: See Herrett v. Seynolds, 2 Giff. 409;
Hall V. Hall, L. E. 11 Eq. 290 ; Boherts v. Albert Bridge Co., L. E. 8 Ch.
753 ; Jackson v. Mawhy, L. E. 1 Ch. D. 86.
Similar Order — Upon Terms.
Let — be at liberty, on or before the — day of — , to pay the sum of
£ — into Court to the credit, &c. Let, upon such payment being
made, and on payment to — of his costs occasioned by the said con-
tempt, and of his costs of this application [to be taxed, &c.], — be
discharged out of the custody of, &c., in respect of his said contempt.
COMMITALS ONDER DeBTOES ACT, 1869, SeCT. 5.
Order for Immediate Payment.
Upon motion, &c.. Let the said A. B. pay to the said — [the sum of
£ — as and for] the costs of and incident to 'this application and
this order, and further, that the said A. B., for default in payment of
the sum of £ — , mentioned in the said decree [or order] of the — day
of — be committed to prison for the term of six weeks from the date of
his arrest, including the day of such date, unless he shall sooner pay
the said sum of £ — and sheriff's fees for the execution of this order,
and the costs hereinbefore directed to be paid [or, and the said sum of
£ — for costs]. Let any sheriff or ofiScer to whom a office copy of this
order shall be delivered, after being directed to him by the clerk
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106 ENFOECING OBDEES AND JUDGMENTS.
of records and writs, take the said A. B. for the purpose aforesaid if he
be found within the bailiwick.
Payment by Instalments.
UroN motion, &o.. Let the said A, B. pay to the said — [the sum of
£— as and for] his costs of and incident to this application and this
order, and further, that the said A. B. for default in payment of the
sum of £ — ■, mentioned in the said decree [or order] of the — day of
— be committed to prison for the term of six weeks from the date of
his arrest, including the day of such date, unless he shall sooner pay
the sheriff's fees for the execution of this order and the costs hereinbefore
directed to be paid [or, and the sum of £ — hereinbefore directed to be
paid for costs], and the sum of £ — , part of the said sum of £ — .
Let the said A. B. pay to the said [state to whom or to what account to
be paid] the sum of £ — , the residue of the said sum of £ — , by —
equal instalments on [state times of payment]. Let any sheriff or officer
to whom an office copy of this order shall be delivered, after being
directed to him by the clerk of records and writs, do take the said
A. B. for the purpose aforesaid, if he he found within his bailiwick.
"The Court may commit to prison for a term not exceeding six weeks, or
until payment .of the sum due, any person who makes default in payment of any
debt, or instalment of any debt, due from him in pursuance of any order or
judgment of that or any other competent Court.
" Provided (1) That the jurisdiction by this section given of committing a
person to prison shall, in the case of any Court other than the superior Courts of
Law and Equity be exercised only subject to the following restrictions ; that is
to say —
" (a.) Be exercised only by a judge or his deputy, and by an order made in
open Court, and shewing on its face the ground on which it is
issued :
" (6.) Be exercised only as respects a judgment of a superior Court of Law
or Equity when such judgment does not exceed £50 exclusive of
costs :
" (c.) Be exercised only as respects a judgment of a County Court by a
County Court judge or his deputy.
" (2.) That such jurisdiction shall only be exercised when it is proved to the
satisfaction of the Court that the person making defeult either has or has had
since the date of the order or judgment the means to pay the sum in respect of
which he has made default, and has refused or neglected, or refuses or neglects to
pay the same :" 32 & 33 Vict. o. 62, s, 5.
Where the Court has ordered a man to pay a sum of money, whether in the
shape of costs or anything else, a debt is constituted within the meaning of s. 5 :
Ilewitson v. Sherwin, L, E. 10 Eq. 58 ; ante, p. 103.
Form of Order for Committal under Sect. 5 of Debtors Act.
" The Court in making an order for committal to prison under the 5th section
may either make such imprisonment determinable on payment of the whole sum
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ENFOBOING OEDEBS AND JUDGMENTS. 107
in respect of whicli the person to be imprisoned is in default, together with such
costs as the Court shall think fit, or may order the debt to be paid by such in-
stalments as the Court shall think fit, and make the imprisonment determinable
on payment of such costs and such of the said instalments as the Court shall
think fit, and in either of such cases the Court, if it shall think fit, may direct
payment of a sum in gross in lieu of taxed costs :" Debtors Act, 1869, s. 13.
An office copy of the order of committal shall be delivered to the sheriff or
other officer required to execute the same : Debtors Act, 1869, s. 13.
Inquiries — Further Evidence.
" The Court upon hearing of any such application may, if it shall see fit so to
do, instead of refusing or granting the application, adjourn the same, and either
give leave to adduce further evidence, or direct an inquiry in chambers as to the
means of the person making default, or require the production and oral exami-
nation before itself of the person making default, and any persons who have
given evidence against or in support of the application, or of such of them as the
Court may think fit, in the same manner as such production and oral examination
might be required at the hearing ef a cause :" Debtors Act, 1869, s. 11.
Discharge of Prisoner committed under Debtors Act, 1869 — Certificate.
Upon payment of the sum or sums in that behalf mentioned in the order of
committal, including the sheriff's fees, and the costs or gross sum in lieu of costs
made -payable by the order, the person committed is entitled to the following
certificate, or to the like effect, signed by the solicitor of the person prosecuting
the decree or order which has been disobeyed, or if such person he acting in
person, then signed by him, and attested by a solicitor or justice of the peace : —
A. V. B.
[or, In the Matter of — J]
I certify that A. B. now in the gaol of — upon an order of the High Court of
Chancery dated the — day of — , made in the above cause [or, matter] until pay-
ment of £ — , has paid the said sum, together with the [the sum of £ — for] costs
mentioned in the said order, and sheriff's fees. Gen. Ord. Jan. 7, 1870, rule 17,
and schedule.
Attachment after Discharge.
" In case any order is made under the 5th section of the said Act for payment of
a sum of money by instalments, and the person imprisoned shall after his dis-
charge from prison neglect or refuse to pay the subsequent instalments, or any of
them, the person prosecuting the decree or order for disobedience to which the
committal was ordered, shall, in addition to his remedies against the property of the
person making default, be entitled to enforce payment of such subsequent instal-
ments by attachment, as in the case of disobedience to an order directing the per-
formance of some act other than payment of money ": Gten. Ord. 7 Jan., 1870,
rule 18.
Writ of Possession.
" A judgment for the recovery or for the delivery of the possession of land may
be enforced by writ of possession " : Jud. Eules, Order 42, rule 3.
And such a judgment may be enforced by writ of possession in manner hereto-
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fore used in actions of ejectment in the superior CJourts of Common Law : Jud,
Rules, Order 48, rule 1.
" Where by any judgment any person therein named is directed to deliver up
possession of any lands to some other person, the person prosecuting such judg-
ment shall, without any order for that purpose, be entitled to sue out a writ of
possession on filing an affidavit shewing due service of such judgment, and that
the same has not been obeyed " : Jud. Rules, Order 48, rule 2.
Under the former practice in ejectment, upon any judgment for recovery of pos-
session and costs there might have been either one writ or separate writs of
execution for the recovery of possession and for the costs at the election of the
claimant : Common Law Procedure Act, 1854, s. 187.
If the writ of possession is not executed, or only part executed, then upon the
return of it an alias writ may issue : Chitty's Archbold, 12th ed., 1046.
But if possession be once completely given under it, the pit cannot sue out
another writ of possession : Doe d. Fate v. Soe, 1 Taunt. 55, cited in Chitty's Arch-
bold, 12th ed. 1046. In such a case, however, if the disturbance took place
recently, after the possession delivered, it is probable that the Court, upon appli-
cation, would order the possession to be restored : Ibid.
The officer, if necessary, may break open doors in order to execute the writ, if
the possession be not quietly given up : 5 Co. 91 b, cited in Chitty's Archbold,
1045.
And after he has got possession, he may remove all persons, goods, &c., from off
the premises before he gives possession : Upton and Will's Case, cited in Chitty's
Archbold, 1045.
O'edees pro inteeesse suo,
Upon motion, &o.. Let the following inquiry be made, that is to say :
1. An inquiry whether A. B. hath any and v^hat interest in the
lands, tenements, &c., situate at — , &c., sequestered hy — , the seques-
trators acting under the commission of sequestration issued in this
cause, or any and what part thereof. Seton, 1220.
Where the right of the person asking for an inquiry is clear, the Court has
made an order in his favour without inquiry : Dixon v. Smith, 1 Sw. 457, cited
in Dan. 920.
And has ordered possession of the property claimed to be delivered to the
claimant upon his entering into security : Wliaram v, Broughton, 1 Ves. Sen. 180.
Where a person claims to be entitled to property sequestered, he should apply
to the Court to direct an inquiry whether he has any and what interest in the
property sequestered.
The order may be obtained as well of personalty as of real estate : Lord Pelham
v. Duchess of Newcastle, 3 Sw. 290, n.
ENFOECINa AGAINST SHERIFF EeTURN OF WrIT.
Order Nisi for Committal.
Whereas by an order dated, &o., it was ordered that the sheriff of
— should forthwith make his return to the writ of attachment issued
against — for his contempt in not, &o. [stale the defauU]. Now, upon
motion, &c., who alleged that the said order was on the — day of —
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ENPOECING OEDEES AND JUDGMENTS. 109
duly served on the sheriff [deputy sheriff, or under-sheriff] of the
county of — , as by affidavit of — appears, notwithstanding which the
said sheriff has not returned the said writ of attachment, and upon
reading-the said order and affidavit. Let the said sheriff of — within
six days after personal notice hereof return the said writ of attach-
ment, and in default thereof Let the said sheriff stand committed to
Holloway Prison [for his said contempt]. See ijofterte v. Maddocks,
1843, B., 144 ; Seton, 1230.
Order Absolute.
Whereas by an order dated, &c. Now upon motion, &c., and it ap-
pearing by the affidavit of — that the sheriff [deputy sheriff, or under-
sheriff] has been duly served with the said order, notwithstanding
which the said sheriff has not. returned the said writ, although the
time limited for that purpose has expired ; and upon reading the said
order and affidavit, Let the said sheriff of — stand committed to Hol-
loway Prison for his said contempt.
Enforcing by Mandamus.
A mandamus may he granted by an interlocutory order of the Court in aU
cases in which it shall appear to the Court to he just or convenient that such
order should be made ; and any such order may be made either unconditionally
or upon such terms and conditions as the Court shall think just : 36 & 37 Vict,
c. 66, s. 25, sub-s. 8.
An application for an order under the above sub-section may be made to the
Court or a judge by any party. If the application be by the pit, it may be made
either ex parte or with notice ; and if it be by any other party, then on notice to
the pit, and at any time after appearance by the party making the application :
Jud. Eules, Order 52, rule 4i
The writ simply commands the performance of the duty, and in other respects
is in the form of an ordinary writ of execution, except that it shall be directed to
the party and not to the sherifiF, and may he issued in term or vacation, and re-
turnable forthwith ; and no return thereto, except that of compliance, shall be
allowed ; but time to return it may, upon sufficient grounds, be allowed by the
Court or Judge, either with or without terms: Com. Law Proc. Act, 1854,
s. 72.
In all cases in which a writ of mandamus is issued imder the provisions of the
Common Law Procedure Act, 1854, such writ shall, unless otherwise ordered by
the Court or a judge, in addition to the matter directed to be inserted therein,
command the deft to pay to the pit the costs of preparing, issuing, and servino-
such writ : Com. Law Proc. Act, 1854, s. 32.
In case of disobedience, the writ might be enforced by attachment : Com. Law
Proc. Act, 1854, s. 73.
Writ of Delivery.
A writ for delivery of any property other than land or money, may be issued
and enforced in the manner heretofore in use in actions of detinue in the superior
Courts of Common Law : Jud. Eules, Order 49.
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110 BNFOECING ORDERS AND JUDGMENTS.
The Court may order execution to issue for the return of the chattel detained,
and that if the said chattel cannot be found, the sheriff distrain. See Com. Law
Proc. Act, 1854, s. 78 ; Chitty's Archbold, 12tli ed. 710.
Attachment of Debts.
Examination of Debtor — Production of Books.
" Where a judgment is for the recovery by or payment to any person of money,
the party entitled to enforce it may apply to the Court or a judge for an order
tbat the judgment debtor be orally examined as to whether any and what debts
are owing to him before an officer of the Court, or such other person as the Court
or judge shall appoint ; and the Court or judge may make an order for the ex-
. amination of such judgment debtor, and for the production of any books or
documents :" Jud. Rules, Order 45, rule 1.
Debts from Qarnishee attached — Garnishee to appear.
" The Court or a judge may, upon the ex parte application of such judgment
creditor, either before or after such oral examination, and upon affidavit by him-
self or his solicitor stating that judgment has been recovered, and that it is still
unsatisfied, and to what amount, and that any other person is indebted to the
judgment debtor, and is within the jurisdiction, order that all debts owing or
accruing from such third person (hereinafter called the garnishee) to the judg-
ment debtor shall be attached to answer the judgment debt ; and by the same or
any subsequent order it may be ordered that the garnishee shall appear before
the Court or a judge, or an officer of the Court, as such Court or judge shall
appoint, to shew cause why he should not pay the judgment creditor the debt
due from him to the judgment debtor, or so much thereof as may be sufficient
to satisfy the judgment debt :"' Jud. Rules, Order 45, rule 2.
Service of Order attaching, to hind Debts.
" Service of an order that debts due or accruii^ to the judgment debtor shall
be attached, or notice thereof to the garnishee, in such manner as the Court or
judge shall direct, shall bind such debts in his hands :" Jud, Rules, Order 45,
rules.
Default of Payment, or of Dispute of Debt.
" If the garnishee does not forthwith pay into Court the amount due from him
to the judgment debtor, or an amount equal to the judgment debt, and does not
dispute the debt due, or claimed to be due from him to the judgment debtor, or
if he does not appear upon summons, then the Court or judge may order execu-
tion to issue, and it may issue accordingly, without any previous writ or process,
to levy the amount due from such garnishee, or so much thereof as may be
sufficient to satisfy the judgment debt:" Jud. Rules, Order 45, rule 4.
Garnishee disputing Lidbility.
"If the garnishee disputes his liability, the Court or judge, instead of making
an order that execution shall issue, may order that any issue or question necessary
for determining his liability be tried or determined in any manner in which any
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ENFORCING OEDEES AND JUDGMENTS. Ill
issue or question in an action may be tried or determined :" Jud. Rules, Order
45, rule 5.
" Whenever in proceedings to obtain an attachment of debts, it is suggested by
the garnishee that the debt sought to be attached belongs to some third person,
or that any third person has a lien or charge upon it, the Court or judge may
order such third person to appear, and state the nature and particulars of his
claim upon such debt :" Jud. Rules, Order 45, rule 6.
Exeaition against Garnishee.
" After hearing the allegations of such third person under such order, and of
any other person whom by the same or any subsequent order, the Court or judge
may order to appear, or in case of such third person not appearing when ordered,
the Court or judge may order execution to issue to levy the amount due from such
garnishee, or any issue or question to be tried or determined according to the
preceding rules of this order, and may bar the claim of such third person, or
make such other order as such Court or judge shall think fit, upon such terms,
in all cases, with respect to the lien or charge (if any) of such third person, and
to costs, as the Court or judge shall think just and reasonable :" Jud. Rules,
Order 45, rule 7.
Payment or Execution to be a Discharge. (
" Payment made by, or execution levied upon, the garnishee, under any such
proceeding as aforesaid, shall be a valid discharge to him as against the judgment
debtor to the amount paid or levied, although such proceeding may be set aside,
or the judgment reversed :" Jud. Rules, Order 45, rule 8.
Costs.
" The costs of any application for an attachment of debts, and of any proceed-
ings arising from or incidental to such application, shall be in the discretion of
the Court or a judge :" Jud. Rules, Order 45, rule 10.
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CHAPTER XVII.
INFANTS.
Chiardian ad litem — Deft's Amplication.
Let — be assigned guardian of the infant — by whom he may
defend this action.
€hmrdian ad litem — Solicitor — Pit's Application.
Upon motion, &o., who alleged that the Deft C. is an infant and has
been duly served with a writ of summons m this action, and that
the said Deft has not appeared in this action, as by certificate of, &o.,
appears, although his time for doing so expired upon the — day of
— , and upon reading an affidavit of — , and an affidavit of notice to
A., the person with whom the said Deft C. was living at the time of
service of the said writ [_If infant not residing with father or guardian :
And to the father [or, guardian] of the said infant]. Let — , one of
the solicitors of this Court be assigned guardian to the said Deft
C, by whom he may defend this action.
Infants.
Actions hy and against.
Infants may sue as pits by their next friends in the manner practised in the
Court of Chancery before the passing of the Judicature Acts ; aud may, in
like manner, defend any action by their guardians appointed for that purpose :
Jud. Rules, Order 16, rule 8 ; ante, p. 9.
Where an infant is a deft service of the writ of summons upon the father
or guardian, or, if none, upon the person with whom the infant resides, or under
whose care he or she is, is to be deemed good service unless the Court otherwise
directs : Jud. Rules, Order 9, rule i ; ante, p. 2.
" Where no appearance has been entered to a writ of summons for a deft who
is an infant, or a person of unsound mind not so found by inquisition, the pit may
apply to the Court or a judge for an order that some proper person be assigned
guardian of such deft, by whom he may appear and defend the action. But
no such order shall be made unless it appears on the hearing of such application
that the writ of summons was duly served, and that notice of such application
was after the expiration of the time allowed for appearance, and at least six clear
days before the day in such notice named for hearing the application, served upon
or left at the dwelling-house of the person with whom or under whose care such
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INFANTS. 113
deft was at the time of sewing such writ of summons ; and also (in tiie case of
such deft being an infant not residing with or under the care of his father or
guardian) served upon or left at the dwelling-house of the father or guardian,
if any, of such infant, unless the Court or judge at the time of hearing such ap-
plication shall dispense with such last-mentioned service ": Jud. Eules, Order 13,
rule 1 ; ante, p. 6.
Under the former practice in Chancery, where the infant made the application
the order was obtained either upon petition at the Rolls or upon motion of course.
It must have been proved by affidavit that the guardian had no interest adverse
to the infant, and that the proposed guardian was a proper person to be ap-
pointed.
Upon default made by a deft, an infant, or a person of weak or unsound mind
not so found by inquisition, the Court might, upon the application of the pit,
order that one of the solicitors of the Court be assigned guardian of such deft, by
whom he might appear and defend the suit.
Where the Court appointed one of the solicitors of the Court to be guardian ad
litem of an infant or person of unsound mind the Court might direct that the
costs to be incurred in the performance of the duties of such office should be borne
and paid either by the parties or some of the parties to the suit, or out of any fund
in Court in which such infant or person of unsound mind might be interested :
Cons. Ord. 40, rule 4.
The official solicitor of the Court of Chancery is usually appointed.
Where in a foreclosure suit the official solicitor had been appointed upon the
pit's application guardian ad litem to infant defendants, the Court on making the
foreclosure decree has ordered the pit to pay the guardian's costs and add them to
his own, even where the security is inadequate : Harris v. Barrdyn, 3 De G. &
Sm. 470; 14 Jur. 155 ; Newbury v. Marten, 15 Jur. 166.
And in a partition suit the pit was ordered to pay the costs of the official soli-
citor acting as such guardian, and to charge them on the infant's share : Edbinson
V. Aston, 9 Jur. 224.
Where the official solicitor has been appointed guardian ad litem his appear-
ance for other defts suing in forma pauperis does not disentitle him to full costs
of suit : Frazer v. Thompson, 1 Giff, 337.
Guardian of Person — Maintenance.
The judge doth hereby appoint ■ — guardian [or, guardians] of the
person of the infant A. during his minority, or until further order.
Let the sum of £ — a year be allowed [without deducting tax] for the
maintenance and education of the said infant as from the — day of —
during the minority of the said infant, or until further order, and be
paid by half-yearly payments of £ — each [if out offvmd in Court : out
of the dividends as they accrue on the £ — ■ annuities in Court to the
credit of, &c., to the said — as such guardian, to be applied by him
accordingly, and the first payment to be made on the — day of — ] [if
out of fund not in Court : by — out of the rents and profits or income
of the property in question in this cause to which the said Deft is
entitled under the will of — , or by — , the receiver appointed in this
cause, who is to be allowed such payments in passing his accounts].
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114 INFANTS.
Guardian of Person and Estate.
The judge doth hereby appoint A., upon his first giving security,
guardian of the person and estate of the infant B. during his minority
or until further order. Let the sum of £ — a year be allowed for the
maintenance and education for the said infant as from the — day of
— , during his minority, or until further order, and be paid, &c.
Custody and Education.
" In questions relating to the custody and education of infants, the rules of
Equity shall prevail": Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 24, sub-s.
10. See Lyms v. Blenhin, Jac. 245 ; Stourton v. Stourfon, 8 De Gr. M. & G.
760; SiU v. Bill, 10 W. B. 400 ; Andrews v. Scdt, L. E. 8 Ch. 622.
For the practice relating to the appointment and removal of guardians of infants,
see Dan. 5th ed. 1189.
Applications for such appointment or removal are usually made at Chambers.
It is unnecessary in a decree relating to infants' property to reserve liberty to
apply at Chambers as to guardianship.
Where the only object is the appointment of a guardian of the person the ap-
pointment may be made under the summary jurisdiction of the Court. There
was no necessity to file a bill : Be Duhe of Newcastle, 15 Ves. 447, n. ; Ex
parte Mountford, Ibid. 445, 447.
And the fact of the father of an infant being alive is not in itself a sufficient
reason to prevent the Court interfering, for if a sufficiently strong case is made a
person will be appointed, without suit, to act as guardian during the Ufetime of
the father : Dan. 5th ed. 1193, and cases there cited.
The father of any child under the age of twenty-one years, and not married
at the time of the father's death, may by deed or will dispose of the custody and
tuition of the child during minority : 12 Car. 2, c. 4.
But a father under the age of twenty-one years cannot by will dispose of the
custody of his children : 7 Will. 4 & 1 Vict. c. 26, s. 7.
A testamentary guardian is subject to the control of the Court both with
respect to the property and the person of the infant : Duke of Beaufort v. Berty,
1 P. Wms. 708, 704 ; Talbot v. Earl of Shrewsbury, 4 My. & Cr. 672.
Where there are no proceedings pending which wiU enable the Court to take
upon itself the management of the infant's property, a guardian of the etote as
well as of the person may be appointed ; but where such a suit is pending, a
guardian of the person only will be appointed : Dan. 5th ed. 1196.
Usually a guardian of the estate gives seoiirity. Where, however, the pro-
perty is small, the Court has been satisfied with the undertaking of the guardian
to account : Be Sidingham, cited in Seton, 706.
Where the estate consists exclusively of realty or leaseholds, the whole of the
rents of which are allowed to the same guardian for the infant's .maintenance, a
recognisance is not usually required ; Dan. 5th ed. 1197.
Maintenance — Out of what Fund.
Generally speaking, a father must, if he can, maintain his infant children,
whatever their circumstances may be, and no allowance will be made to him for
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INFANTS. 115
this purpose out of their property : Maopherson, 219, citing Fawkner v. Watts,
3 Atk. 408 ; Jackson v. Jackson, Ibid. 514 ; Butter v. Butler, 3 Atk. 60 ; Stocfcen
V. Stocken, 4 My. & Or. 9.5.
Where the question turns upon the father's ability, maintenance is given
wherever he is not in such circumstances as to be able to give the child an educar
tion suited to the fortune of the child : Buckworth v. Buchworth, 1 Oox, 80 ;
Ex parte Mountfort, 15 Ves. 445 ; Walker v. Shore, Ibid. 122 ; Moste v. Pratt ;
Andrews v. Partington, 2 Oox, 223.
Maintenance will be ordered although the'instrument under which the property
is held contains no direction for maintenance : Jervoise v. Silk, Coop. 52.
So, too, where the trustees have been directed to accumulate the income :
Oreenwell v. Greenwell, 5 Ves. 194 ; Cavendish v. Mercer, 5 Ves. 195, n. ; Fair-
man V. Green, 10 Ves. 44.
If the father is of ability to maintain his children in a suitable manner, the
Court will order the income of the children's property to be accumulated, not-
withstanding an express direction in the settlement that the income of the
property be applied for the children's benefit : Andrews v. Partington, 3 Bro.
C. C. 60 ; 2 Cox, 223.
Where the Court takes away from the father the care and custody of the
children, the allowance for maintenance will be without reference to the circum-
stances of the father : Hughes v. Hughes, 1 Bro. C. C. 387 ; lAvesey v. Livesey,
3 Euss. 287.
Where the father is alive and not of ability to maintain his children, main-
tenance will be allowed without considering the ability of the mother, although
she may have a separate income : Haley v. Bannist^, 4 Madd. 275 ; Etc parte
Purleaze, 1 Bro. C. C. 387 ; Cavendish v. Mercer, 5 Ves. 195 ; cited in Maopher-
son, 224.
Eemotal of Guaebian.
' The Court of Chancery could, under the former practice, not only remove
guardians appointed by its own authority, but also guardians at the Common
Law, and even testamentary or statute guardians ; Story, vol. ii., p. 5,93 ; Wel-
lesley v. Duhe of Beaufm-t, 2 Euss. 1, 21, per Lord Eldon ; Welleslmj v. Wellesley,
2 Bli. (N.S.) 128; Eyre v. Countess of Shafteshury, 2 P. Wms. 107; Ex
parte Champney, 1 Dick. 350 ; Be Swift, 2 Moll. 330.
The Court, however, only rarely removes a testamentary guardian : Boach v.
Oarvan, 1 Ves. Sen. 157.
The testamentary guardian may, by consent, be removed upon petition. But
except by consent the removal of such guardian must have been upon bill filed :
i?e McCulloch, 1 Dru. 276.
Although the Court cannot, upon petition, remove testamentary guardians
against their consent, the Court has jurisdiction upon petition (and without a
bill under the former practice) to order the minors to be made wards of Court,
and to give directions for their maintenance and education : Be McOidloch,
1 Dru. 276.
As to the jurisdiction of the Court in controlling the powers of the guardians,
see Duke of Beaufort v. Berty, 1 P. Wms. 702 ; Be Manneville v. De Manne-
viUe, 10 Ves. 65 ; Lyrni v. Blenkin, Jac. 245 ; Skinner v. Warner, 2 Dick. 779 ;
Talhot V. Earl of Shrewsbury, 4 My. & Cr. 672.
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UG INFANTS.
Testamentary Guardians — Petition against — Inquiries.
Let tte following inquiries be made : (1) What is the nature and
amount of the fortunes of the minors, and in what manner the said
minors should he maintained and educated, and with whom they
should reside, and what sum would be proper to he allowed for their
maintenance, clothing, and education, and from what time the same
should commence, and out of what fund be paid ; ( 2) "Whether it
will be fit and proper, and for the benefit of the said minors, that
any and what further proceedings should be taken touching their
property, and to have the same secured for their benefit. Let the
said guardians have notice of attending the proceedings, &c. Be
McCklloch, 1 Dru. 276, 282.
Liberty to take Infamt out of Jurisdiction — Special Provisions.
Let the infant Pit J. T., with his tutor, be allowed to reside and
travel abroad with the Deft John Earl of Shrewsbury ; the said last-
named Deft, by his counsel, undertaking to bring the said infant Pit
back within the jurisdiction of this Court on or before the 1st day of
June, 1840, or at such other time as this Court shall direct. Let the
Deft A. B. be at liberty to visit the infant Pit J. T. at the residence
of the said Deft John Earl of Shrewsbury, or elsewhere, at all
reasonable times. Let the Defts J. W., W. B., and J. H. E. (the
trustees), pay to the Deft A. B. such sum or sums of money as they
may think reasonable for expenses already incurred, or to be hereafter
incurred, by her in visiting the infant Pit John Talbot. — Directions
for taxation and payment of costs. — Liberty to apply. Talbot v. Earl
of Shrewsbury, 4 My. & Cr. 673, 677.
Temporary visit Abroad.
A. B., the mother and one of the guardians of the infant Pit
C. D., having signed a written undertaking to bring the said C. D.
within the jurisdiction of this Court within the time hereinafter
mentioned, or such other time as the Court shall direct. Let the said
infant C. D. be at liberty to go to — for the benefit of his health for
a period of — months from the — day of — . Let the sum of £ — he
paid to the said A. B. by the Defts, as executors of the will of the
testator F., towards the travelling and other expenses of the said
C. D., in addition to the sum allowed by the order dated, &c., for the
maintenance and education of the said infant. Let the said sura of
£ — be allowed to the said executors on passing their accounts.
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INFANTS. 117
Ayprenticeshijp of Infant.
Let the infant H. K. W. be placed out as an articled pupil with
A. W., of &c., for the purpose of being instructed in the profes-
sion of — .. Let £ — be allowed as a proper premium to be paid to
the said A. W. on that occasion. And the judge having approved of
the indenture of apprenticeship marked A, dated &c., and made between
&c., as a proper indenture for that purpose, and which and a duplicate
thereof marked B. are identified by the signature of the Chief Clerk in
the margins thereof, and which have been executed by all parties. Let
so much of the £ — - Consolidated 3 per Cent. Annuities in Court to the
credit, &c., as will raise £ — be sold. Let out of the money to arise
by such sale the said £ — be paid to the said A. W. for such premium
aforesaid, and the sum of £ — for the costs of this application to M.,
the solicitor of the applicants. Let the dividends as they accrue on
the residue of the said Consolidated Annuities be continued to and be
paid in manner directed by the order dated &c.
Liberty to take Infant odt of Jdeisdiction.
Under special circumstances, the Court permits infants to go out of the juris-
diction for the purpose of temporary or even of permanent residence there, or
when already abroad, to remain there under restrictions whereby their property,
and their education and marriage remain within its control : Dan. 5th ed. 1197.
In considering the residence of the infant, Ireland and Scotland are deemed to
be foreign countries : Mountstuart v. MounistiM/rt, 6 Ves. 363 ; Letham v. E.<M,
7 Sim. 141.
The person taking the infant out of the jurisdiction usually signs an under-
taking that the infant shall be returned within the jurisdiction by the time pre-
scribed by the Court.
Where the application is made in open Court, the undertaking is written in the
registrar's book. Where the application is made at Chambers, the written imder-
taking is indorsed on the summons.
The undertaking of counsel is sometimes considered sufficient: Maopherson,
132.
The Court will not, from any supposed benefit to infant subjects of a foreign
country who have been sent to this ' country for education, interfere with the
discretion of the guardian appointed by a foreign Court when he wishes to
remove them from England for educational purposes abroad : Nvgent v. Vetzera,
L. E. 2 Bq. 704.
Peopkiett of Suit.
Inquiry.
Let the following inquiries be made : —
1. Whether it will be fit and proper, and for the benefit of the Pits,
that this suit should be further prosecuted. And if it shall appear to
be fit and proper, and for the benefit of the Pits, that this suit siiould
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118 INFANTS.
be furtlier prosecuted, Let the following further inquiry be made.
2. An inquiry whether it is fit and proper, and for the benefit of the
Pits, that S. M., the guardian of the Pits, should continue to be the
next friend of the Pit. And if it shall appear that it is not fit and
proper, nor for the benefit of the Pits, that the said S. M. should
continue to act as such next friend. Let a proper person be appointed
to be the next friend of the Pit in substitution for the said S. M.
And in the meantime Let aU further proceedings in this cause be
stayed. — Liberty to apply. Towsey v. Groves, 32 L. J. (Ch.) 225;
9 Jur. (N.S.) 194.
PBOPKiETy OF Suit.
Where a strong case is shewn that a suit preferred ia the name of aa infant is
not for the infant's benefit, or instituted from improper motives, the Court will
direct an inquiry whether suit is beneficial : Stevens v. Stevens, 6 Madd. 97 ;
Smallwood v. Butter, 9 Hare, 24 ; Towsey v. Oroves, 32 L. J. (Ch.) 225 ; 9 Jur.
(N.S,) 194; Order, supra.
If upon the inquiry it appears that the suit was not beneficial, either the pro-
ceedings will be stayed or the suit dismissed, with costs to he paid by the next
friend : Da Costa v. Da Costa, 3 P. Wms. 140 ; Bichardson v. Miller, 1 Sim.
133 ; Fox V. Swerkrop, 1 Beav. 583.
Where it is clear upon the evidence given on the first application that the suit
was instituted from improper motives, the order to dismiss has been made sum-
jnarily without inquiry : Sale v. Sale, 1 Beav. 586 ; Ouy v. Ouy, 2 Beav. 460.
In some cases inquiries have been made whether the suit was beneficial, and
also whether the next friend ought to be continued, and who would be the proper
person to conduct the suit if the next friend was removed : Nalder v. SawJdns,
2 My. & K. 243 ; Towsey v. Cfroves, 9 Jur. (N.S.) 194.
Where a decree is made in the suit it is irregular to direct an inquiry whether
any benefit has accrued to the infant from the suit : so as to make the answer to
that inquiry depend on the result of the accoimts directed by the decree : Dan. 5th
ed. 70, citing Clayton v. Clarke, 3 De G. P. & J. 682 ; 7 Jur. (N.S.) 252, 562.
Allegations or Fact against Infants in Pleadings — Not denied
OE not admitted.
" Every allegation of fact in any pleading in an action not being a petition or
summons, if not denied specifically, or by necessary implication, or stated to be
not admitted in the pleading of the opposite party, shall be taken to be admitted,
except as against an infant, lunatic, or person of unsound mind not so found by
inquisition " : Jud. Eules, Order 19, rule 17 ; ante, p. 14.
Decrees against Infants.
In cases of foreclosure and partition, and in all cases where the real estate of
an infant was ordered to be sold, and consequently a conveyance was deferred
until the infant attained twenty-one, it has been the custom to insert in the de-
cree a day to shew cause : Booth v. Bich, I Vern. 295 ; WiUmmsm v. Gordon,
19 Ves. 114 ; Mallack v Gaiton, 3 P. Wms. 352 ; Price v. Carver, 3 My & Cr'
162, 163.
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INFANTS. 119
But in decrees for sale for the payment of debts it is not the present practice
to give an infant a day to shew cause : See 11 Geo. 4 & 1 Will. 4, c. 47, s. 10.
And " where any decree shaU. he made by any Court of Equity for the specific
performance of a contract concerning any lands, or for the partition or exchange
of any lands, or generally where any decree shall be made for the conveyance or
assignment of any lands, either in cases arising out of the doctrine of election or
otherwise, it shall be lawful for the said Court to declare that any of the parties
to the said suit wherein such decree is made are trustees of such lands or any
part thereof within the meaning of this Act," &c. : Trustee Act, 1850, s. 30.
The effect of an order under this section would seem to dispense, in the cases
there referred to, with the necessity of a day being given to the infant to shew
cause against a decree after the infant has attained twenty-one.
But in a foreclosure decree against an infant it is still necessary that a day to
shew cause be given to the infant : Newbury v. Marten, 15 Jur, 166.
After a decree of foreclosure an infant is not permitted to open the account or
to redeem the mortgage by paying what is reported due, and he can shew no
cause but error in the decree : Mallack v. Oaltm, 3 P. Wms. 352 ; Lyne v. Willis,
Ibid.; Winiam,son v. Oordon, 19 Ves. 116. But the restriction does not extend
to cases of fraud.
The clause giving the infant a day to shew cause against a foreclosure decree
must be inserted in the order for making the decree absolute as well as in the
Origmal decree : Williamson v. Gordon, 19 Ves. 114.
But where the value of the mortgaged property was clearly less than the
amount due to the mortgagee, the Court at the hearing has made an absolute
decree for the sale of the infant's estate upon the pit paying the infant's costs :
Dan. 5th ed. 152 ; Groxon v. Lever, 10 Jur. (N.S.), 87 ; Billson v. Scott, Seton,
686.
Infant Wards.
Alleged Marriage of Infant Ward — Parties to attend the Judge.
Let — , and the infant Pit M. H., and E. B. the mother and guardian
of the said infant, attend His Lordship, the Vice-Ghancellor ^, in his
private room at the Court at [Lincoln's Inn], in ihe county of Middle- ,
sex, at the sitting of the Court on the — day of — , at — of the clock
in the forenoon.
Infant to he brought within the JmriBdiction and to attend the Judge.
A. B. being deputed by E. B., the mother of the infant Pit M. H.,
Let the said A. B. forthwith proceed to — and take all necessary pro-
ceedings for bringing the infant Pit vsrithin the jurisdiction of this
Court, and for producing her before this Court. Let J. H., in thie
affidavits of, &o., named, and all other persons whom it may concern,
forthwith deliver the Pit M. H. to the said A. B. Let the said A. B.
personally attend with the said Pit before His Lordship the Vice-
ChanceUor — , in his private room at the Court at Lincoln's Inn, in
the county of Middlesex, at the sittings of the Court, at — of the
clock on the — day of — , or so soon thereafter as the Pit shall be
brought within the jurisdiction of this Court. Let service of this
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120 INFANTS. ,
order upon the said J. H. in Scotland be deemed good service on the
said J. H. BoTsfall v. mihert (V.-O. B.), Dec. 10, 1870.
Inquiry as to M/irriage of Infant Ward — Settlement.
Let an inquiry be made if the Pit A. has contracted a valid mar-
riage V9ith B. in the petition named [and if so, under vsrhat circum-
stances]. And in case a valid marriage has been contracted, Let a
proper settlement of tbe fortune of the said infant be approved by the
judge. Adjourn further hearing of the petition. {Or, if ordered : Let,
upon the due execution of such settlement by such parties thereto as
the judge shall direct, such execution to be certified by tbe chief
clerk, the £ — Consolidated 3 per Cent. Annuities in Court to the
credit of, &c., be transferred, &o., to such persons as the chief clerk
shall certify are entitled to receive the same.]
Inquiry as to Marriage of Infant Ward — Terms of Settlement hy the Court.
D., the husband of the infant Pit C, by his counsel, submitting to
execute such settlement of the fortune of the said infant Pit as the
Court shall direct. Let the following inquiries be made : — 1. An in-
quiry whether the marriage in the petition mentioned to have been
contracted between the said D. and the infant Pit is a valid marriage.
2. And if it shall appear that such marriage is a valid marriage, an
inquiry of what the fortune of the said infant consists, and how the
same is invested. Let a proper settlement be approved by the judge
of the fortune of the said infant, subject to the liability, if any, to the
payment thereout of the costs of this suit, and such settlement to be
upon the trusts following, that is to say : the income of the said in-
fant's fortune accruing from and after her marriage to be paid to her
during her life for her separate use, with restraint upon anticipation
while she shall be imder coverture, and after her death the capital to
be held in trust for the issue of the said marriage as the husband and
wife shall jointly by deed appoint ; and in default of such joint ap-
pointment among the children of the marriage equally, to vest as to
sons on attaining the age of twenty-one years, and as to daughters on
attaining that age or marriage ; and in default of children attaining a
vested interest, as the wife shall, notwithstanding coverture, by will
appoint ; and in default of appointment, among the next of kin of the
■wife according to the Statutes of Distribution, &c. Jessd v. Tozer,
1869, A., 2724 ; Seton, 730.
Inquiry as to Marriage upon motion to commit — Undertakings — Strict
Settlement,
Upon motion, &c., by counsel for T. K., of, &c., and J. B., of &c., the
guardians of the infant M. J. K., that T. W., of, &c,, might be com-
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INFANTS. 121
mitted to prison for a contempt of this Court in having married the
said infant M. J. K. without the leave of this Conrt, and upon hearing
counsel for the said T. W., and upon reading, &o., and the said T. W.,
and the above-named infant, and P. S. and P. G., the witnesses to the
alleged marriage between the said T. W. and the said infant M. J. K.,
personally attending tMs day before this Court pursuant to the order
dated, &c, And the said P. S. and P. G. [the witnesses] personally
undertaking to attend this Court whenever required so to do, and
having signed the registrar's book accordingly, and the said T. W.
(the alleged husband) by his counsel and personally undertaking when
competent so to do, and when required by this Court, to execute such
settlement as the Court shall approve of the whole of the fortune of
his alleged wife M. J. W., otherwise M. J. K., and having signed the
registrar's book accordingly, Let an inquiry be made whether a valid
marriage has been solemnized between the said T. W. and M. J. W.,
otherwise M. J. K. And if it shall appear that a valid marriage has
been solemnized. Let a proper settlement of the said infant's fortune
be settled by the judge, and in such settlement the fortune of the said
infant is to be settled as strictly as in law or equity it possibly can to
exclude the interference of her husband during her life, and the rents
and profits and income thereof are- from time to time to be paid into
her own hands, and never by anticipation. Let- all payments under
the order dated, &c., for maintenance of the said infant, be stayed.
Let an inquiry be made whether any, and if any what, other persons,
have aided or abetted the said T. W. and the said infant in procuring
such alleged marriage. Let this motion stand over as to the contempt
of Court. Be Knowles (V.-C. B.), Dec. 23, 1873.
Order restraining Marriage of Infant Ward — Intercourse and Communi-
cation restrained.
Let the infant Pit A. and B. be restrained from intermarrying.
Let the said B. be restrained from having any interview with the
infant Pit A., and from having any intercourse or communication
with him directly or indirectly by letter or message, or by any
messenger, or by any other manner whatever, and from receiving any
letter from the said infant, or resorting to any place with the purpose
or with the view of meeting him, or shewing to him that she is present.
Let the said infant Pit and the said B. be also restrained from having
any interview, intercourse, or communication with each other by the
means aforesaid, or in any other manner whatever.
Let C, and all other the relations and friends of the said B., and all
others^ acting in privity with her, be restrained from aiding or assist-
ing in or procuring, or endeavouring to procure, the marriage of the
said infant Pit with the said B., or in procuring, or endeavouring to
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122 INFANTS.
procure, any intercourse or comnninication whatever between them
until the further order of this Court. Let the said — attend His
Honour (in the private room) at the Court at Lincoln's Inn, in the
county of Middlesex, at the sitting of this Court on the — day of — ,
at — o'clock in the afternoon. Thornhill v. Thornhill (L. C), 1852,
B. 11.
Sestraininff Order against conniving Parties — TPpon Petition to commit.
Let H. B. J. and T. T. B., and each of them, and any of their rela-
tions or family, and all others acting in privity with the said H. B. J.
and T. F. B., be restrained from aiding or assisting, or procuring or
endeavouring to procure any intercourse or communication whatever
between the said T. F. B. and the Pit E. A. H. until the further order
of the Court. Eest of petition to stand over. Henry v. Wyaft (V.-C. B.),
March 2, 1871.
Marriage of Infant Ward — Beclaration of Contempt — Committal.
Declake that G. H. L. and S. his wife, T. B. J. and M. E. his wife,
have been guilty of a contempt of this Court in contriving and assist-
ing to procure the infant Pit M. H. to be clandestinely withheld from
the custody of E. B., her mother and guardian, and to be married to
the said J. H. Let the said G-. H. L. and S. his wife, T. B. J. and
M. E. his wife, severally stand committed to the City Prison at Hollo-
way for their said contempt. Eorsfall v. Bulhert (V.-C. B.), Dec. 2,
1870.
Similar Order — Examination of Susband.
J. H. being present in Court and examined. Declare that upon the
facts disclosed by such examination the said J. H. has committed a
contempt of this Court in procuring the infant Pit M. H. to abscond
with him for the purpose of having the ceremony of marriage solemn-
ized between them without the leave of this Court. Let the said
J. H. stand committed to the City Prison at Holloway for such con-
tempt. Eorsfall v. Halbert (V.-C. B.), Dec. 15, 1870.
Husband of Ward discharged from Custody— Special Undertakings.
The petitioner G. A. H. C. by his counsel undertaking not to inter-
marry with the infant C. T., nor to have any interview, intercourse,
or communication with the said infant directly or indirectly by letter
or message, or by any messenger, or in any other manner whatsoever,
nor to receive any letter from the said C. T., nor to resort to any place
with the purpose or with a view of meeting the said C. T., or showing
to the said C. T. that he the said G. A. H. C. is present, without the
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INFANTS. 123
sanction of this Court ; and E. C, the fiither of tHe petitioner, being
preBent in Court, and personally undertaking that the costs hereby
directed to he taxed shall be paid within forty-eight hours after the
date of the certificate of taxation, and having signed the registrar's
book accordingly, and also personally undertaking that the said
G. A. H. C. shall not have any intercourse, interview, or communica-
tion with the said C. T. as aforesaid. Let the said G. A. H. C. be
discharged out of the custody of the keeper of the Queen's Prison
[now out of the custody of the governor of the City Prison at HoUoway]
in respect of his contempt, &c. Directions for payment of all costs by
the said G-. A. H. C. The discharge to be without prejudice to any
further order.. Injunction awarded ty order dated, &o., to be con-
tinued. Thornhill v. ThornUU (L. C), 1854, B. 107 ; Seton, 732.
Infant Waeds.
In case of an offer of marriage of a ward the Court will refer it [to Chambers]
to inquire whether the match is a suitable one, and also what settlement ought to
be made : Smith v. Smith, 3 Atk. 305.
The petition is usually adjourned into Chambers, without an order.
Where a person marries a ward of the Court without its consent and appro-
bation, such person and all others concerned in aiding and abetting the act will
be treated as guilty of a contempt of the Court, and may be committed to prison,
even though ignorant of the infant being a ward : Dan. 5th ed. 1207, citing Ih/re
V. Countess of Shaftesbury, 2 P. Wms. Ill ; Hubert's Case, 3 P. Wms. 116 ;
Sill V. Turner, 1 Atk. 515, and other cases.
Where a marriage has been actually celebrated without the sanction of the
Court, the Court will not discharge the husband who has been committed for the
contempt until he has made a proper settlement : Stevens v. Savage, 1 Ves. Jun.
154 ; Winch v. James, 4 Ves. 386 ; Bathurst v. Murray, 8 Ves. 74, 78.
The Court usually directs an inquiry whether the marriage is valid, and if
valid will direct a settlement of the fortune of the female ward.
But formerly will, in most cases, order the parties to attend personally either in
open Court or in the judge's private room.
If it is found that the marri^e of an infant ward is invalid, a valid marriage
may be ordered : Bathitrst v. Mwrray, 8 Ves. 74 ; Be Walker, LI. & G. temp.
Sug. 299 ; Hodgens v. Bodgens, 4 01. & F. 323 ; Be Murray, 3 D. & War. 83.
Where a ward of Court entitled to a small fund in Court to her separate use
married on the day after she came of age, the fund had been ordered to be settled
but on appeal it was ordered to be transferred to her : White v. Eerrick,!,. E
4Ch. 345.
Peopeety Law Amendment Act
11 Geo. 4 & 1 Wjll. 4, c. 65.
Leases for Lives or Years — Surrender,
The Court doth hereby appoint B., the guardian of the infant A.,
to surrender to C, in the place of the said A., the lease dated, &c.
granted, &o., of the hereditaments, &c., therein comprised, anij to accept
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124 INFANTS.
and take in the place and for the benefit of the said infant and the
other persons interested and to tecome interested under the will of
D., &c., one or more new lease or leases of the said hereditaments during
the lives of E. and F. (such surrender and new leases to be settled
by the judge). Be Buckle ( V.-C. T.), June 6, 1850 ; Seton, 693.
Leases of Land held in fee or in tail — Sect 17.
The Court being of opinion that it is fit and proper and for the
benefit of the infant petitioner J. S. W., that a lease or leases of the
pieces of land mentioned in the'conditional agreement and memorandum
dated, &c., to which the petitioner is entitled for an estate in tail
male in possession, should be granted to B. M. B. and W. M., upon the
terms and conditions mentioned in the said agi-eement, together with
such rights and liberties as are therein expressed, Let the said con-
ditional agreement aiid memorandum be carried into effect accordingly.
Let a proper lease or leases in conformity therewith be settled by
the judge. And the petitioner is to be at liberty to make and
execute su,ch lease or leases when so settled. Let a counterpart or
counterparts of such lease or leases be executed by the lessees therein
named, and be deposited for safe custody with the clerk of records and
writs until the petitioner shall attain twenty-one, but with liberty for
the proper parties to have the use thereof if required in the meantime
for the purpose of enforcing any of the covenants therein contained.
And the petitioner is to be at liberty to apply to the judge in Chambers
concerning the costs of and incident to this application. Be Wilkinson
(M. E.), Deo. 22, 1871.
Same Section — Order in Chambers.
The judge being of opinion that it is for the benefit, &o., Let the
said agreement be carried into effect accordingly. Let B., the
guardian of the infant, be at liberty in the name of the said infant
to execute the indenture marked X. intended to be made between the
said infant of the one part and the said C. of the other part, which
has been settled and approved by the judge as a proper lease in con-
formity with the said agreement, and is identified by the signature of
the chief clerk in the inargin of the engrossment of the said lease, and
of the counterpart thereof respectively. And Let the said counterpart
be executed by the said C, the lessee, and be deposited for safe
custody, &c. Seton, 696.
Leases for Lives or Years.
" In all cases where any infant under the age of twenty-one years, or a/eme
covert, is or shall become entitled to any lease or leases made or granted for the
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INFANTS. 125
life or lives of one or more person or persons, or for any term of years, either
absolute, or determinable upon the death of one or more person or persons, or
otherwise, it shall be lawful for such person under the age of twenty-one
years, or for his or her guardian or other person on his behalf, and for such
fetne covert, or any person on her behalf, to apply to the Court by petition or
motion, or in a summary way ": 11 Geo. 4 & 1 Will. 4, c. 65, s. 12.
And by the order and direction of the Court such infant or feme covert,
or his guardian, or any person appointed in the place of such infant or feme
covert, may be enabled by deed or deeds to surrender such lease or leases,
and accept and take in the place and for the benefit of such person under
the age of twenty-one years, or feme covert, one or more new lease or leases of the
premises comprised in such lease surrendered by virtue of this Act for and
during such number of lives, &c. : Ibid.
The application is at Chambers where the infant is a ward of Court, or the
administration of ,the estate of the infant, or the maintenance of the infant, is
under the direction of the Court : Cons. Ord. 35, rule 1, art. (5).
The new lease will be directed to be settled by the judge ; and if necessary
an inquiry will be directed whether the surrender will be for the benefit of the
infant : Dan. 5th ed. 1918.
" Every sum of money and other consideration paid by any guardian, trustee,
committee, or other person as a fire premium or income, or in the nature of a fire
premium or income, for the renewal of any such lease, and all reasonable charges
incident thereto, sljall be paid out of the estate or effects of the infant or lunatic
for whose benefit the lease shall be renewed, or shall be a charge upon the lease-
hold premises, together with interest for the same, as the said Court, &c., shall
direct and determine " : sect. 14.
" And as to leases to be made upon surrenders by /isTOas covert, unless the fine or
consideration of such lease and the reasonable charges shall be otherwise paid or
secured, the same, together with interest, shall be a charge upon such leasehold
premises for the benefit of the person who shall advance the same " : Ibid.
Where any person under the age of twenty-one, or a feme covert, might, in
pursuance of any covenant or agreement, if not under disability, be compelled to
renew such leases, the Court may authorize such infants or feme covert to accept
a surrender of the lease, and to make and execute a new lease : see sect. 16.
" Where any person being an infant under the age of twenty-one years
is or shall be seised or possessed of or entitled to any land in fee or in tail, or to
any leasehold land for an absolute interest, and it shall appear to the Court of
Chancery to be for the benefit of such person that a lease or underlease should
be made of such estates for terms of years for encouraging the erection of build-
ings thereon, or for repairing buildings actually being thereon, or the working of
mines, or otherwise improving the same, or for farming, or other purposes, it shall
be lawful for such infant, or his guardian in the name of such infant, by the
direction of the Court of Chanceiy, to be signified by an order to be made in a
summary way upon the petition of such infant or his guardian, to make such
leases of the land of such persons respectively, or any part thereof, according to
his or her interest therein respectively, and to the nature of the tenure of such
estates respectively, for such term or terms of years, and subject to such rents
and covenants, as the Court of Chancery shall direct": sect. 17.
" But in no case shall any fine or premium be taken, and in every such case
the best rent that can be obtained, regard being had to the nature of the lease,
shall be reserved upon such lease, and the leases and covenants and provisions
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126 INFANTS.
therein shall be settled and approved," &c., "and a counterpart of every such
lease shall be executed by the lessee or lessees therein to be named, and such
counterpart shall be deposited for safe custody," &c., " until such infant shall attain
twenty-one, but with liberty to proper parties to have the use thereof, if required
in the meantime, for the purpose of enforcing any of the covenants therein con-
tained : provided that no lease be made of the capital mansion-house, and the
park and grounds respectively held therewith, for any period exceeding the minority
of any such infant " : Ibid.
If persons bound to renew are out of the jurisdiction of the Court, the renewals
may be made by a person appointed by the Court in the name of the person who
ought to have renewed : sect. 18.
And the committees of lunatics, by direction of the Court, may accept,
surrender, and make new leases : sect. 19.
Leases have been directed to be granted where the applicants have between
them been entitled to the whole fee, although there was no person in existence
entitled to an indefeasible estate in possession : Be Clark, L. K. 1 Ch. 292 ; Dan.
5th ed. 1921.
Infants Custody Act.
36 & 37 Vict. c. 12.
Special Order.
T. B. of — , P. B. of — , and — , undertaking to take proper care of,
and to provide in a proper manner for the education and maintenance
of the infant E. L. B, Let — at six o'clock this evening deliver her
to the said T. B., he undertaking forthwith to deliver her safely to
her mother. Let the said E. L. B. remain in the custody of the said
— until the said B. L. B. attains the age of seven years (see now 36 & 87
Vict. c. 1 2), or during suet shorter time as the Court may direct. And
the said E. L. B. is not to he removed from C. without leave of the Court,
except for occasional visits for change of air and for- health to the coast
of England, or to any place in the country not exceeding 120 miles from
London. And on every change of residence notice by letter, to he
sent by post, is to be given to the father of the said E. L. B. Let the
said — , or some member of his family deputed by him, have access
to the said E. L. B. once in every six weeks, the interviews ftot to
exceed two hours in duration, and to take place between the hours of
ten in the forenoon and five in the afternoon, at the house of — ,
if she consents that the child be sent there, in the care of some respon-
sible person to be appointed by the mother, who shall bring the child
back to the mother, the said — (the father) undertaking not to inter-
fere with or oppose or obstruct its return ; biit in case the said —
shall not consent to such interviews taking place at her house, then
the said — (the father) is to have access to the infant at the house
where his wife may be then residing, and there in the presence of
some responsible person to be appointed as hereinbefore mentioned.
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INFANTS. 127
Let the said — (the mother) have access to the other five children
once in every six weeks, the interviews not to exceed two hours in
duration, and to take place between the hours of ten in the forenoon
and four in the afternoon, and to take place so long as the five children
shall reside at or within two miles of L. within two miles of that
town or its suburhs, at some respectable place to be appointed from
time to time by the said — (the mother) at or within two miles of L. ;
and if resident elsewhere (except at or within one mile of C), then to
take place at some respectable house at or within one mile of the
place where they are resident, to be appointed by — ; but if resident
or visiting at or within one mile of C, then the five children to be
brought to the then residence of their mother, under the care of some
responsible person to be appointed by the said — (the father), such
person to bring them back to their father; and the said — (the
father) not to be present at any of the interviews, or to molest or
annoy his wife upon any of those occasions. — Provisions that in case
of the illness of the youngest child E. L. B., notice be given by
letter, by post, to the father, and if he should be dissatisfied with the
medical attendance he to be at liberty to apply to the Court. — The
infant to be brought up as a member of the Church of England. —
Question whether the Court has jurisdiction under the Act of Parlia-
ment to give costs, and if it has the jurisdiction, whether the Court
should give costs, reserved. -Re Bariktt, 10 Jur. 768 ; 2 Coll. 661.
Infants Cdstody Act.
It shall be lawful for the Court of Chancery in England or in Ireland re-
spectively " upon hearing the petition by her next friend of the mother of any
infant or infants under sixteen years of age to order that the petitioner shall have
access to such infant or infanta at such times and subject to such regulations as
the Court shall deem proper, or to order that such infant or infants shall he
delivered to the mother and remain in or under her custody or control, or shall if
already in her custody or under her control, remain therein until such infant
or infants shall attain such age not exceeding sixteen as the Court shall direct ;
and further to order that such custody or control shall he subject to such regu-
lations as regards access by the father or guardian of such infant or infants, and
otherwise, as the said Court shall deem proper " : 36 & 37 Vict. c. 12, s. 1.
" No agreement contained in any separation deed made between the father and
mother of an infant or infants shall be held to he invalid by reason only of its
providing that the father of such infant or infants shall give up the custody or
control thereof to the mother : provided always, that no Court shall enforce any
such agreement if the Court shall be of opinion that it will not be for the benefit
of the infant or infants to give effect thereto " : 36 & 37 Vict. c. 12, s. 2.
The provisions of the 2 & 3 Vict. c. 54, are repealed : 36 & 37 Vict. c. 12, s. 3.
A petition under the 2 & 3 Vict. c. 54, might have been presented without a
next friend : Be Groom, 7 Hare, 38.
And might have been presented by leave of the Court in forma paitperis: Ex
parte EaJcewiU, 3 De G. M. & G. 116 ; 17 Jur. 334.
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128 INFANTS.
And the order might have been obtained ex parte if the circumstances of the
case required it : Be Taylor, 11 Sim. 178.
It was not necessary under the 2 & 3 Vict. c. 54, that the wife should have
obtained or be entitled to obtain a decree a mensd et thoro: Hx parte Bartlett,
2 Coll. 661, 664.
But if the wife has deserted her husband without a cause the Court would not
interfere on her behalf: Be Taylor, 11 Sim. 178.
And where in proceedings in the Divorce Court the Court found that although
not guilty of adultery the wife had been guilty of great misconduct, her applica-
tion for access to the child was refused. Be Winscom, 2 H. & M. 541 ; see also
Shillito V. Collett, 8 W. R. 683.
Under the 2 & 3 Vict. o. 54, no order was to be made by virtue of that Act
whereby any mother against whom adultery shall be established by judgment in
an action for criminal conversation at the suit of her husband, or by the sentence
of an Ecclesiastical Court, shall have the custody of any infant or access to any
infant ; sect. 4.
Upon the application of any person willing to take charge of any in&nt
who has been convicted of felony, and to provide for his maintenance and educa-
tion, the Court is empowered to assign the custody of such infant to such person,
and to rescind or vary the terms of any such assignment; and, if it shall think
fit, 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 : 3 & 4
Viot. c. 90, s. 1.
Infants Maeeiagb Act.
4 Geo. 4, c. 76.
[Upon affidavit that father is abroad]— Declare that the marriage
proposed to he solemnised between, &c., in the petition mentioned, is
a fit and proper marriage within the intent and meaning of the
above-mentioned Act. And Let the infant A. and the said B. be at
liberty to contract the same accordingly. Be Beiby (L. C), July 8,
1843; Seton, 733.
Previous Inquiry — Father non compos.
Let an inquiry be made whether W., the father of the infant peti-
tioner A., is non compos mentis, and if so, whether the intended
marriage between the said infant and B. in the petition named, is a lit
and proper marriage for the said infant.
Forfeiture declared — Inquiry — Settlement — Sect. 23.
Declare that under the Act of Parliament made and passed, &c.,
intituled, &o., the Left G. has incurred a forfeiture of all estate, right,
title, and interest in any property which has accrued or shall accrue
to him by force of his marriage with the infant A. in the pleadings
named. Let an inquiry be made what estate, right, title, or interest
in any property the said A. was entitled to at the time of her marriage
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INFANTS. 129
■with the Deft G., or lias subsequently acquired. Let such property, and
all future property which the said A. shall acquire during the said
marriage be secured for the benefit of the said A. and her issue. And
for that purpose Let a proper settlement be approved by the judge of
all such property, both present and future, on the said A. and her
issue, and in such manner that the Deft G. shall be prevented from
deriving any interest in any real or personal estate, or any pecuniary
benefits from such marriage. Let such settlement be executed by such
persons as shall for that purpose be named in the chief clerk's certifi-
cate.— Deft G. to pay informant costs of suit, to be taxed, &c. — Liberty
to apply. Attorney-General v. CHhson (M. E.), Feb. 20, 1858 ; Seton,
733.
Similar Order — Fund settled hy Order.
Declare that under the Act of Parliament madfe and passed in the
fourth year of the reign of hjs late majesty, King George IV., intituled
" An Act for amending the Laws respecting the Solemnization of
Marriages in England," the Deft A. C. has incurred a forfeiture of all
estate, right, title, and interest in and to any property which has accrued
or shall accrue to him by force of his marriage with the infant Deft
E. A. C, and decree the same accordingly. Declare that the £795
Bank 3 per Cent. Annuities, and the moiety of the three sums to
which the said E. A. C. is entitled in reversion expectant on her
mother's decease in the £617, £56 4s. 4d., and £1955, subject to the
trusts of the settlement dated, &c., and all such other property as has
accrued or shall' accrue to the Deft A. C. by virtue of his marriage
with the sa;id E. A. C, shall be settled and secured for the benefit of
the said E. A. C. and her issue respectively, in manner hereinafter
directed. Directions for taxation and payment of costs out of the £795
Bank Annuities in trustees' hands. Eesidue to be transferred into
Court. Declare that such residue is to be held in trust for the
said E. A. C during her life, but during her coverture for her separate
use, without power of anticipation, and after her decease in trust for
all or such one or more of the children of the said E. A. C. as being a
son or sons sliall attain the age of twenty-one years, or being a
daughter or daughters, shall attain that age or marry, in equal shares
as tenants in common. And if there shall be no such child, and the
Deft E. A. C. shall survive the Deft A. C, in trust for her executors,
administrators, and assigns. But if she shall die in the lifetime of her
husband without any such child, then the same is to be held in
trust for such person or persons (other than the Deft A. C.) as the
said E. A. C. shall by will appoint, and in default of appointment to
such person or persons as would at the time of her decease have been
entitled to her personal estate in case she had died intestate and with-
K
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130 INFANTS.
out ever having been married. Let the interest as it accrues on the
said residue he paid to the said A. E. 0. for her separate use during
her life, or further order.
And it appearing by the affidavit of — that under the said inden-
ture of settlement of the 3rd September, 1847, the said B. A. 0. or the
said A. C, but for the forfeiture hereinbefore declared, is or would be
entitled in reversion expectant on her mother's decease to one moiety of
the several sums of £617 New 3 per Cents., £56 Bank 3 per Cents, and
£1965 Heduced Annuities, which are subject to the trusts of the said
indenture of settlement, and subject to her mother's life interest therein.
Declare that the same, and any other property which may hereafter
accrue to the said E. A. C, or to the said Deft A. C, in her right,
shall be settled upon the like trusts. — Liberty to apply. Attorney-
General V. Clements, L. E. 12 Eq. 32.
Ljfants Marriage Act. ,
The father, if he be living, of any party under twenty-one years of age — such
party not being a widower or widow — or if the father be dead, the guardian of
the person of the party so under age, lawfully appointed, and if there be no such
guardian, then the mother of such party, if unmarried, and if there be no mother
unmarried, then the guardian of such person appointed by the Court of Chancery,
jf any, shall have authority to give consent to the marriage of such party ; and
such consent is thereby required, unless there shall be no person authorized to
give such consent : 4 Geo. 4, c. 76, s. 16.
In case the father or fathers of the parties to be married, or one of them, so
under age, shall be non compos mentis, or the guardian or guardians, mother
or mothers, or any of the persons whose consent is so made necessary to the
marriage of such party or parties, shall be non compos mentis, or in parts beyond
the seas, or shaU unreasonably or from undue motives refuse or withhold his, her,
or their consent to a proper marriage, then that any person desirous of marrying
in any such case may apply to the Court of Chancery by petition : which Court
is empowered to proceed therein in a summary way ; and in case such marriage
upon examination shall appear to be proper, judicially declare the same so to be ;
and such declaration is thereby rendered as effectual as if the father, guardian, or
mother of the petitioners had consented thereto " : 4 Geo. 4, c. 76, s. 17.
These provisions do not extend to the case of a father beyond the seas, or un-
reasonably withholding his consent ; but apply solely to the case of a father who
is non compos mentis : Ex parte J. 0., 3 My. & Or. 471, 474 ; Dan. 5th ed.
1209.
If any valid marriage be procured by a party to such marriage to be solem-
nised with a minor in fraud of the provisions in the Act contained, an information
may be filed to obtain a forfeiture, and " the Court shall have power in such suit
to declare such forfeiture, and thereupon to order and direct that all such estate,
right, title, and interest in any property as shall then have accrued or shall there-
after accrue to such offending party by force of such marriage, shall be secured
under the direction of such Court for the benefit of the innocent party or the
issue of the marriage, or any of them, in such manner as the said Court shall
think fit, so as to prevent the offending party from deriving any interest in any
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INFANTS. 131
estate or pecuniary benefit from such marriage " : 4 Geo. 4, c. 76, s. 53 ; see also
19 & 20 Vict. c. 119, s. 19.
Where the husband had incurred a forfeiture under the 23rd section of 4 Geo. 4,
0. 76, it was held that the Court had no jurisdiction to mitigate the penalty,
but was bound to settle and secure all present and future property of the wife :
Att.-Gm. V. MuOay, 4 Euss. 329, 351.
But upon an infonnation filed under the 4 Geo. 4, c. 76, against the husband,
it was held that he could be compelled to discover the facts relating to the
charge : Att.-Gen. v. Lucas, 2 Hare, 566 ; 2 Ph. 753.
In a case where the minor was a female, the Court refused to sanction a
general power being given to her in the settlement, in case she should die before
her husband, over one-third of her property, though there should be children, as
she might exercise it in favour of her husband, to the prejudice of the children :
Att.-Gen. v. Lucas, 2 Phil. 753.
But the Court approved of a power being given to her in case she survived her
husband, though there should be children, of appointing such one-third either by
deed or will : S. C.
In order to sustain an information under the 23rd section of the Marriage Act,
it is not necessary to shew that the minor with whom the marriage was procured
was entitled at the time of the marriage to any property, either in possession,
reversion, or expectancy : Aft.-Qen. v. Seveme, 1 Coll. 318.
"W here the fund was small, the Court, after declaring the forfeiture, has ordered
the trustees to bring the fund into Court, and declared the trusts of it : Att.-Gen.
v. Clements, L. E. 12 Eq. 32 ; Order, p. 129.
Infants Settlebient Act.
18 & 19 Vict. c. 43.
Infant Ward — Settlement approved — Liberty to execute and to
intermarry.
The judge being of opinion that the proposed marriage between
J. B. and the infant A. F. is a fit and proper marriage for the said
infant, and that the settlement proposed to be effected by the indenture
hereinafter mentioned is a proper settlement to be inade' npon or in
contemplation of such marriage, and that the indenture marked A.,
intended to be made between the said J. B. of the first part, the said
A. B. of the second part, and H. J. K. and C. D. of the third part, and
identified by the signature of the chief clerk of the judge in the
margin of the engrossment thereof, is a proper indenture for giving
effect to such settlement, doth, pursuant to the above-mentioned Act
of Parliament, sanction and approve of the same, and doth order that
the petitioner A. F. be at liberty, upon or in contemplation of her
marriage with the said J. B. to execute the said indenture accordingly.
And upon the execution of such indentures by the several parties
thereto (such execution to be certified), Let the said* J. B. and A. F. be
at liberty to intermarry.
K 2
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132 INFANTS.
Settlement approved — Infant to execute.
The judge being of opinion that the settlement proposed to he
effected hy the indenture hereinafter mentioned, is a proper settlement
to be made upon or in contemplation of the marriage between the
infant A. B. and 0. D., and that the indenture marked H., intended to
be made between, &c., and identified by the signature of the chief clerk
in the margin of the engrossment thereof, is a proper indenture for
giving effect to such settlement, doth pursuant to the above-mentioned
Act of Parliament sanction and approve the same, and doth order that
the infant A. B. be at liberty, upon or in contemplation of her
marriage with the said C. D., to execute the said indenture ac-
cordingly.
Infants Settlement Act.
" It shall he lawful for every infant upon or in contemplation of his or her
marriage, with the sanction of the Court of Chancery, to make a valid and hiading
settlement, or contract for a settlement, of all or any part of his or her property,
or property over which he or she has any power of appointment, whether real or
personal, and whether in possession, reversion, remainder, or expectancy " : 18 & 19
Vict. c. 43, s. 1.
" And every conveyance, appointment, and assignment of such real or personal
estate, or contract to make a conveyance, appointment, or assignment thereof,
executed by such infant with the approbation of the said Court for the purpose
of giving effect to such settlement, shall be as valid and effectual as if the person
executing the same were of the full age of twenty- one years " : Ibid.
" The sanction of the Court to any such settlement, or contract for a settle-
ment, may be given upon petition presented by the infant, or his or her guardian,
in a summary way, without the institution of a suit; and if there be no
guardian, the CouW may require a guardian to be appointed, or not, as it shall
think fit " : sect. 3.
The Court may also require any persons interested in the property to be served
with notice of the petition : Ibid.
A petition is necessary, though a suit is pending: Peareth v. Marriott,
W. N.(1866), 48.
The petition is usually adjourned at once into Chambers.
Where the infant is not a ward of Court, the Court is not bound to inquire into
the propriety of the proposed marriage, but only into the propriety of the pro-
posed settlement : Be Daltm, 6 De G. M. & a. 201 ; 2 Jur. (N.S.) 1077 ; Re
Strong, 2 Jur. (N.S.) 1241.
The Court has no jurisdiction under the 18 & 19 Vict. c. 43, to compel a
settlement against the consent of an infant, not being a ward of Court, who
marries after attaining the age at which she can legally contract marriage : Re
Potter, L, R. 7 Eq. 484.
The Infants Belief Act, 1874.
• 37 & 38 Vict. c. 62,
" All contracts, whether by specialty or by simple contract, henceforth entered
into by infants for the repayment of money lent or to be lent, or for goods sup-
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INFANTS. 133
plied or to be supplied (other than contracts for necessaries), and all accounts
stated with infants, shall be absolutely void : Provided always, that this enact-
ment shall not invalidate any contract into which an infant may by any existing
or future statute, or by the rules of Common Law or Equity, enter, except such
as now by law are voidable " : sect. 1.
" No action shall be brought whereby to charge any person upon any promise
made after full !^e to pay any debt contracted during infancy, or upon ratification
made after full age of any promise or contract, made during infancy, whether
there shall or shaU not be any new consideration for such promise or ratification
after full ^e " : sect. 2.
The 2nd section of this Act applies to ratifications made after the passing of
the Act, of contracts made before that time : Ex parte Kibble, L. R. 10 Ch. 373 ;
see also Ee Onslow's Trusts, L. E. 20 Eq. 677.
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134 )
CHAPTER XVllI.
MAKRIED WOMEN.
Next Friend, deceased— New next Friend.
Let the Pit be at liberty to amend, &c., in tbie action by inBerting
the name of E. as her next friend in the room of A., deceased. If
after decree : Let the Fit be at liberty in all future proceedings in this
action to name E. as her next friend in the room of A., deceased.
New Next Friend in place of one living — After Appea/rance, before Decree.
Let B., upon first giving security, to be approved by the judge in
case the parties differ, to answer the Deft's costs to this time in case
any shall be awarded, the Pit be at liberty to amend, &c , in this
action by inserting the name of the said B. as the next friend of the
Pit in the room of C, the Pit's present next friend.
New Next Friend — Without Prejudice to Liability of original Next Friend.
Let the Pit be at liberty to amend, &c., by substituting R. H. H.,
of &c., as the next friend of the Pit in the place of the above-named
J. T. [and by making the said J. T. a Deft to this action.] But this
order is to be without prejudice to any question as to the liability of
the said J. T. as the present next friend of the Pit to the costs of this
action up to the present time.
Married Woman to defend separately.
Upon motion, &c., by counsel for the Deft A., the wife of the Deft B.,
who alleged that the Deft A. resides within the juiLsdiction of this
Court, but the Deft B. resides at — , out of the jurisdiction of this
Court [or, that the matters in question in this cause arise in right of
the said Deft A., and that the said Deft A., and the Deft B., her hus-
band, live separately, or, have separate interests in the matters in
question in this cause]. Let the Deft A. be at liberty upon first giving
security to defend this action separately from her husband.
Actions by and against.
Married worneii may sue as pits by their next friends, ia the manner practised
in the Court of Chancery before the passing of this Act. Married women may
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MARRIED WOMEN. 135
also, by the leave of the Court or a judge, sue or defend without their husbands
and without a next friend, on giying such security (if any) for costs as the Court
or a judge may require : Jud. Rules, Order 16, r. 8 ; ante, p. 9.
When husband and wife are both defts to the action, service on the husband is
to be deemed good service on the wife, but the Court may order the wife to be
served with or without service on the husband : Jud. Rules, Order 2, r. 3.
Claims by or against husband and wife may be joined with claims by or
against either of them separately : Jud. Rules, Order 17, r. 4 ; ante, p. 11.
In general, where the suit related to the separate property of the wife, the bill
must have been filed in her name by her next friend : Wake v. Barker, 3 Keen, 59 ;
Warran v. Buck, 4 Beav. 95.
Before the name of any person shall be used in any suit as next friend of any
married woman, such person shall sign a written authority to the solicitor for
that purpose, and such authority shall be filed, &c. : 15 & 16 Vict. c. 86, s. 11.
Where a new next friend is appointed by order of the Court, the consent must
be filed before the order is passed.
If under the former practice a bill was filed on behalf of a married woman of
full age without her consent, it was dismissed with costs to be paid by the next
friend : Cooke v. Fryer, 4 Beav. 13 ; Kenrick v. Wood, L. R. 9 Eq. 333.
Security for costs is usually required from the next friends of married women :
Hind V. Whitmore, 2 K. & J. 458 ; Pennington v. Alvin, 1 S. & S. 265.
And where the next friend of the married woman becomes permanently resident
abroad, he must give security, or a new next friend be appointed : Mcock v. Alcock,
5 De G. & Sm. 671.
If the next friend died, or became incapable of acting, or if the pit was
desirous of removing the next friend, a new next friend might be introduced by
amendment before appearance.
After appearance, the same might be done where a new next friend is to be
named in the place of a deceased next friend ; but in other cases the order to
appoint a new next friend was special, and must have been obtained on notice :
Dan. 5th ed. 105.
If the pit neglected or refused to obtain the order in the case of the next
friend's death, the deft might apply for an order directing her to name a new next
friend within a limited time, and that in default the bill be dismissed with costs :
Barlee v. Barlee, 1 S. & S. 100.
Where the next friend of a married woman became insolvent, she was discharged
without prejudice to her past liability ; and all proceedings were stayed until a
new and sufficient next friend was appointed, or the pit obtained an order to sue in
forma pauperis without a next friend : Wilton v. EiU, 2 De G. M. & Gr 807.
See also D'Oechsner v. Scott, 24 Beav. 239.
In general when a bill was filed against husband and wife the pit was entitled
to a joint answer from both, and if the wife made default the husband alone was
liable to process of contempt : Oee v. Cottle, 3 My. & Cr. 180 ; BicJwls v. Ward,
2 Mac. & G. 140.
But if the married woman claimed an adverse interest to her husband, or if she
was made a deft in respect of her separate estate, she might have obtained as of
course an order to defend separately.
So, too, if she was living separate from her husband : Lord Redesdale, 104 ; Budge
V. Weedon, 7 W. R. 368. Or if he was insane, Estcourt v. Emngton, 9 Sim. 252.
Or if she disapproved the defence her husband intended t» make : Lord Redes-
dale, 104; Dan. 5th ed. 164.
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136 MARRIED WOMEN.
The husband might have obtained the order for his wife to answer separately
where he could not induce her to answer : Qarey v. Whittingham^l S. & S. 163.
Whether without notice to the wife, qimre : S. C.
And the pit might have obtained the order without her concurrence if the
husband was abroad : Carlton v. McEnzie, 10 Ves. 442 ; Nichols v. Ward, 2 Mac.
& G. 140 ; Bull V. Withey, 9 Jur. (N.S.) 595 ; Oarey v. Whittinglmm, 1 S. & S.
163. Or if the husband was insane : Estcourt v. Ewington, 9 Sim. 252. Or if the
suit was in respect of the wife's separate estate : Richardson v. De Held, 1 New
Rep, 5 ; see also Woodward v. Conelear, 8 Jur. 642.
If the wife refused to join the husband might, 'upon an affidavit of no collusion,
obtain an order by motion on notice that process of contempt be stayed : Sorry
v. Gane, 3 Madd. 472 ; Leningham v. Smith, 2 Ph. 537 ; Hope v. Carnegie (2),
L. R. 7 Bq. 263.
When the order that she might answer separately was obtained without her con-
currence, a subsequent order to attach her could not have been obtained without
notice to her : Morgan, 435 ; Graham v. Fitch, 2 De Gr. & Sm. 246 ; Some v.
Patrick, 30 Beav. 405.
Where the husband had obtained an order to answer separately from his wife,
the wife might have been ordered, upon the application of the pit, to answer
separately from the husband : Bray v. Akers, 15 Sim. 610.
But the Court could not compel the husband or the wife to obtain an order for
her separate appearance or defence : Hope v. Carnegie (1), L. R. 7 Eq. 254, 261.
Where under the former practice a married woman was living separate from
her husband, and not under his influence or control, the Court upon his applica-
cation gave him leave to put in a separate answer : Barry v. Cane, 3 Madd. 472 ;
Gee V. Cottle, 3 My. & Or. 180; Nichols v. Ward, 2 Mac. & G. 140.
So, too, where she refused to join in a defence with him: Pavie v. Acourt, 1
Dick. 13.
The application must have been upon notice to the pit, and supported by
affidavit of the husband : see Qarey v. WJiittingham, 1 S. & S. 163 ; Nichols v.
Ward, 2 Mac. & G. 143.'
Where the husband was in custody for want of the answer of himself and
wife, he did not clear his contempt by putting in the separate answer of himself
only : Gee v. Cottle, 3 My. & Cr. 180.
Where a married woman had obtained under the former practice an order to
answer separately, she was liable to process of contempt if she did not put in her
answer pursuant to the order.
The pit might have obtained an order for this purpose on an ex, parte applica-
tion: laylor v. Taylor, 12 Beav. 271 ; Thicknesse v. Acton, 15 Jur. 1052; Home
v. Patrick, 30 Beav. 405; 8 Jur. (N.S.) 351.
But where the order that the married woman should answer separately had
been obtained without his concurrence, a subsequent order to attach her could
not be obtained without notice to her : Morgan, 4th ed. 435 ; Graham v. Fitcli,
2 De G. & Sm. 246 ; Home v. Patrick, 30 Beav. 405.
A married woman suing by her next friend is liable to be attached as a feme
sole for disobedience to an order : Otway v. Wing, 12 Sim. 90.
Where the husband and wife have not severed in their defence, a notice of
motion to commit the wife for contempt should be served upon her personally,
and substituted service is irregular : Hope v. Carnegie (1), L. R. 7 Eq. 254.
Whoro a decree had been made against a husband and wife who were living
separate, but had joined in their defence, the husband was held entitled on motion
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MAERIED WOMEN. 137
to an order, not only tliat she should appear separately in the further proceedings,
but that he should not be liable to any attachment or process in consequence of
the wife's conduct : Hope y. Carnegie (2), L. E. 7 Bq 263.
Appeal op Married Woman.
If a married woman a deft, wishes to appeal against an order or decree, she
must do so by her next fiiend : Dan. 5th ed. 170, citing Elliott v. Ince, 7 De Gr.
M. & G. 475 ; 3 Jur. (N.S.) 597 ; Picard v. Eine, L. E. 5 Ch. 274 ; or obtain an
order to appeal in fm-ma pauperis without a next friend: Crouch v. Waller, 4De
Gr. & J. 43 ; 5 Jur. (N.S.) 326 ; or have obtained leave to sue or defend without
her husband or next friend : Jud. Rules, Order 16, r. 8.
A married woman was not entitled to present a petition of appeal without a
next friend, although another person joined in the petition and the suit related
to her separate estate : Picard v. Eine, L. E. 5 Ch. 274.
A married woman deft may appeal by a co-deft as her next friend : Elliott v.
Ince, 7 De G. M. & G. 475 ; 3 Jur. (N.S.) 597.
And may obtain an order to appeal in forma pauperis without a next friend :
Crouch v. Waller, 4 De G. & J. 43 ; 5 Jur. (N.S.) 326.
A married woman who has obtained an order to sue in forma pauperis, and in
whose favour a decree has been made, may be paid dives costs of an appeal :
Wellesley v. Wellesley, 7 De G. M. & G. 1.
Compromise of Suit.
The Court has power to compromise the rights and claims of persons under dis-
ability where the rights and claims are merely equitable : Brooke v. Lord Mostyn,
2 De G. & Sm. 373, 415 ; 4 H. L. C. 304.
And a married woman has been held bound by a compromise of a suit with
respect to a fund settled to her separate use without power of anticipation ;
Wilton V. Hill, 25 L. J. (Ch.) 156.
And the Court can direct ih e compromise on behalf of a married woman although
her interest is merely reversionary : Wall v. Rogers, L. R. 9 Eq. 58.
Upon a petition to the Court to sanction the compromise of a suit by a married
woman against a trustee for breach of trust, the married woman should appear
.separately from her husband : S. C.
Costs against.
Where the Court was of opinion that a married woman deft ought to pay
costs, and it did not appear that she had separate estate, liberty to apply was
given to the pit to apply for payment of such costs in case of any moneys
becoming payable to her separate use : Pemberton v. M'Qill, 1 Jur. (N.S.) 1045.
FORECLOSUEE AGAINST.
In a foreclosure suit against a married woman it is not usual to give a day to
redeem after the coverture is determined : Mallack v. Galtan, 3 P. Wms. 352.
But the Court has refused to rnake an immediate order absolute for foreclosure
against married women, even with their consent, and upon an affidavit of the
amount due : Harrison v. Kennedy, 10 Hare, App. 51.
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138 MAERIED WOMEN.
Establishing Will against.
The admission of a will in the separate answer of a married woman has been
held not sufiSoient to enable the Court to declare the will establisbed or to bind
her inheritance : Brown v. Hayward, X Hare, 432 ; 6 Jur. 847.
Eight to sub in FoemA Pauperis.
A married woman may obtain an order to sue without a next friend in forma
pauperis upon evidence that she is unable to procure a substantial person to
act as next friend : Be Foster, 18 Beav. 525 ; Wellesley v. Wellesley, 16 Sim. 1 ;
1 De G. M. & Gr. 501 ; Wellesley v. Morninyton, 18 Jur. 552 ; Be Lancaster,
18 Jur. 229.
And to prosecute the further proceedings of a suit after decree : D'Oechsner v.
Scoff, 24 Beav. 239.
And to appeal : Crouch v. Waller, 4 De G. & J. 43 ; 5 Jur. (N.S.) 326.
A married woman might under the former practice apply to sue in forma
pauperis before bill filed if the draft bill had been settled and signed by counsel :
Wellesley v. Mornington, 18 Jur. 522 ; Be Barnes, 10 W. E. 464.
Maeeied Woman's Eight by Suevivoeship — Choses in Action.
The assignment or mortgage by a husband of his wife's choses in action will
not defeat her right by survivorship unless the husband or his assignee do some
act to reduce the property into possession : Hutchings v. Smith, 9 Sim. 137 ;
Ellison V. Elwin, 13 Sim. 309 ; MicJielmore v. Mudge, 2 Giff. 183 ; AsKby v.
Ashhy, 1 Coll. 549.
And where a married woman who at the time of marriage is absolutely
entitled to a fund in Court, joins wUh her husband in executing a mortgage, the
security is void against the wife's right by survivorship unless something is done
by the husband or incumbrancer to reduce the fund into possession : Prole v.
Soady, L. E. 3 Ch. 220.
The carrying over a fund in Court to the account of the husband and wife is
not a reduction into possession by the husband : S. C.
As to the effect of a divorce upon the wife's right by survivorship, see Wells v,
Mattm, 31 Beav. 48 ; Re Insole, L. E. 1 Eq. 470 ; Prole v. Soady, L. E. 3 Ch.
220.
Payment to Husband in Eight of the Wife — To Husband
AND Wife.
An order for payment of a sum of money to the husband in right of the wife
vests it in the husband : Eeygate v. Annesley, 3 Bro. C. C. 362 ; Tidd v. Lister,
3 De G. M. & G. 857, 871 ; 18 Jur. 543.
Where the order has been made for payment to husband and wife, and either
party dies before payment, the money will belong to the survivor : Nancey v.
Martin, 1 Ch. Eep. 234 ; Coppin v. , 2 P. Wms. 496 ; Forles v. Phipps,
1 Eden, 502, cited in Dan. 5th ed. 111.
Payments to Women who afterwaeds marey.
"When money in Court is directed to be paid, or securities in Court are
directed to be transferred or delivered to a woman who is not married at the date
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MARRIED WOMEN. 139
of the ordea-, and such woman shall marry before payment of such money, or
transfer or delivery of such securities, such money if it does not in the whole
exceed £200 of principal money or £10 in annual payments, or such securities if
they or the aggregate of such securities and money do not exceed in value £200
sterling, may be paid, transferred, or delivered, to such woman and her husband
upon proof of the marriage, and upon an affidavit of such woman and her husband
that no settlement or agreement for a settlement whatsoever has been made or
entered into before, upon, or since their marriage, or in case any such settlement
or agreement for a settlement has been made or entered into, then upon an
affidavit of such woman and her husband identifying such settlement or agree-
ment for a settlement, and stating that no other settlement or agreement for a
settlement has been made or entered into as aforesaid, and an affidavit of the
solicitor of such woman and her husband that such solicitor has carefully perused
such settlement or agreement for a settlement, and that, according to the best of
his judgment, such money or securities are not nor is any part thereof subject to
the trusts of such settlement or agreement for a settlement, or in any manner
comprised therein or affected thereby ; and upon^ proof of the marriage and pro-
duction of such affidavits the Registrar may issue a certificate authorizing the
transfer or delivery of such securities to such woman and her husband " : Chancery
Fund Rules, 1874, rule 52.
Equity to a Settlement.
Settlement by the Court — Whole Fund settled — Ultimate Limitations in
favour of the Wife.
Let £637 Bank Stock, residue of the £1000 Bank Stock standing to
the credit of, &c., be carried over in these causes to an account to be
intituled " The settlement account of the share of A. M. E., one of the
five children of M. T." Let the dividends as they accrue thereon
be paid to the said A. M. E., the wife of the Deft 0. E., on her sole
receipt, and for her separate use, independent of her present or any
future husband. Declare that the said dividends are not to be subject
to his debts, control, contracts, or engagements, and that he is not to
be at liberty during her present or any future coverture to assign,
mortgage, charge, or otherv?ise anticipate any unaccrued payment of such
dividends. Declare that from and after the decease of the said A. M. E.
the said Bank Stock is to be divisible amongst her children in such
shares as she may by will appoint, and in default of such appointment,
and so far as any such appointment shall not extend, then the said
Bank Stock is to be divisible in equal shares among all and every the
children of the said A. M. E. who being a son or sons shall attain
twenty-one, or being a daughter or daughters shall attain that age or
marry, whichever shall first happen, with benefit of survivorship be-
tween or amongst them, and if there shall be but one such child then
for such one child. And if at the time of the decease of the said
A. M. E. there shall be any child or children of the said A. M. E. who
shall be presumptively entitled to anj^'share or shares in the said Bank
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140 MAERIED WOMEN.
Stock, but whose share or shares shall not for the time heing be vested
or immediately payable, Declare that the annual income of the pre-
sumptive share of every such child, or so much thereof as may be
necessary for that purpose, shall be applicable for or towards the
maintenance, support, education, and advancement in life of such child
or children until such shares shall become payable, or he or they shall
previously die. Declare that in the event of the said A. M. E. dying
without leaving or having had any child who being a son shall
attain the age of twenty-one years, or being a daughter shall attain
that age or marry, then the said Bank Stock, in case she shall survive
her husband, shall be transferred to the executors, administrators, or
assigns of the said A. M. E. absolutely. But if she shaU die in the
lifetime of the said husband, then to J. H., his executors, adminis-
trators, and assigns absolutely as purchaser thereof. Garter v. Taggart,
1 De G. M. & G. 286.
Settlement hy the Court — Portion of the Fund settled — Ultimate Limitation
(in default of Issue) in favour of Husband and his Assignee.
Declare that it is fit and proper that out of the sum of £2000 in
the chief clerk's certificate mentioned, the sum of £1 500 should, sub-
ject as hereinafter mentioned as to costs, be settled in trust for the
separate use of the Deft E. W. for her life, without power of antici-
pation, with remainder in trust for her children or other issue by her
present or any future marriage as she shall appoint. And in default
of appointment to her children equally or their issue, the issue taking
only the parent's share, And in default of the Deft E. W. having any
children, then in trust for the Pit W. S., as assignee of the Deft
H. W., the husband of the said E. W. Let the residue of the said
£2000 be paid by the Deft to the Pit W. S. first on account of his
costs of this suit, and then on account of his claim as assignee of the
Deft H. W. — Directions for taxation and payment of Deft's costs out of
the £1500. — Let a proper settlement be settled by the judge in Cham-
bers of the residue of the said £1500 according to the aforesaid decla-
ration.— Liberty to apply. Spirett v. Willows, L. E. 1 Ch. 620.
Settlement hy the Court — Trusts in favour of Children of present Marriage
— Ultimate Limitation (in default of Issue) in favour of Sushand.
DiEECTiONS for taxation and payment of costs. — Let the residue of
the said cash be invested in Bank £3 per Cent. Annuities to the credit
of " In the matter of the estate of J. E. W., deceased. The account
of the settlement of A. M. D. and her children." Declare that the
Bank Annuities which will be standing to such account are to be held
in trust for the said A. M. D. during her life and during her present
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MARRIED WOMEN. 141
coverture for her separate use, without power of anticipation, and
after her decease in truist for all the children of her present marriage
who being a son or sons shall attain the age of twenty-one years, or
being a daughter or daughters shall attain that age or marry, equally
to be divided between them, and if there shall be no such child in
trust for the said L. D., his executors, administrators, or assigns.
Let the dividends as they accrue during the life of the said A. M. D.
upon such Bank Annuities when purchased be paid to W. and M., as
guardians of the said A. M. D., they undertaking to apply the same
for the maintenance and benefit of the said A. M. D. Be Webb (M. E.),
June 26, 1871.
Married Woman's Equity to a Settlement.
The wife's equity to a settlement attaches whenever proceedings are pending in
the Court of Chancery with reference to her personal property or her equitable
interest in real estate : Sturgis v. Champneys, 5 My. & Or. 97 ; Hansom v. Keat-
ing, 4 Hare, 1 ; Wortham v. Pemberton, 1 De G-. & Sm. 644.
But not against the assignee of her life estate : Tidd v. Lister, 3 De G-. M. &
G. 857; 18 Jur543.
Nor against her own creditors at the time of her marriage : Barnard v. Ford
la. R. 4 Oh. 247.
Generally speaking a settlement will be decreed to the wife whenever the hus-
band seeks the aid of the Court of Chancery to procure the possession of any
portion of his wife's fortune : Jewson v. Moulson, 2 Atk. 419 ; Sleech v. Thor-
rington, 2 Ves. Sen. 561 ; Bosvil v. Brander, 1 P. Wms. 459.
It is immaterial whether the fortune accrues before or during marriage ;
whether the property consists of funds, in the possession of trustees or of third
persons ; or whether it is in the possession of the Court, or under its administra-
tion, or not; the equity of the wife will equally attach to it: Btory, vol. ii.,
665 ; Eoper on Husband and Wife, vol. ii. 250.
And the equity attaches whether the proceedings are in reference to her per-
sonal property or her equitable interest in real estate : Sturgis v. Ghampneys, 5
My. & Or. 97 ; Hansom v. Keating, 4 Hare, 1 ; Wortham v. Pemlerton, 1 De G.
& Sm. 644.
t
Where there is a charge on land for the benefit of a married woman which the
Court has jurisdiction to raise, making a provision for the wife, if there be an
attempt to raise the charge by other means, with a view to defeat the wife's
equity, the Court will restrain the proceeding, and make provision for her : Dun-
vombe V. Greenacre, 7 Jur. (N.S.) 175.
Where the husband and wife are subjects of, and resident in, a foreign country,
according to the law of which the husband would be entitled to the wife's fortune
without settlement, the Courts here will not compel a settlement in respect of
the wife's personal property within their jurisdiction : Sawyer v. Shute, 1 Anst.
63; but see Watts v. Shrimpton, 21 Beav. 97; Hope -v. Hope, 22 Beav. 351.
The assignees in bankruptcy of the husband, and his assignees for the payment
of debts, are bound to make a settlement upon the wife out of her choses in
action and equitable interests assigned to them, whether they are absolute
interests or life interests only, in the same way and to the same extent as he
would be bound to make one : Roper on Husband and Wife, c. 7, p. 268.
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142 MARRIED WOMEN,
And such assignees take the property subject to the wife's right of survivorship,
in case the husband dies before the assignees have reduced her choses in action and
equitable interests into possession : Pierce v. Thornhy, 2 Sim. 167 ; Horner v.
Morton, 3 Russ. 65.
If a husband enters into possession of assets in the capacity of executor or trustee
and not in the capacity of husband of a legatee, there is no reduction into possession
of the wife's share to prevent it coming to her in the event of her surviving him :
Balcer v. Ball, L. E. 8 Oh. 338 ; see also Wall v. Tomlinson, 16 Ves. 413.
The assignee or purchaser from the husband for valuable consideration of the
wife's choses in action or equitable interests is bound to make the settlement :
Story, vol. ii., 671 ; Eoper on Husband and Wife, vol. i. 268.
The wife's equity to a settlement will be enforced not only against the husband
and his assignees, where he or they are pits, but also where the married woman or
her trustee is pit : Sturgis v. Ohampneys, 5 My. & Ci'. 99 ; Hansom v. Keating,
8 Jur. 944 ; Glark v. Cook, 3 De G. & Sm. 333 ; Bosvil v. Brander, 1 P. Wms.
458.
But the wife's equity for a settlement is generally understood to be strictly per-
sonal to herself, and it does not extend to her issue, unless it has been asserted
and perfected by her in her lifetime : Story, vol. ii. 677.
And if she die entitled to any equitable interest, and leave a husband, and her
children are unprovided for by any settlement, the husband may recover the
same in equity without making any provision for the children : Koper on Hus-
band and Wife, vol. ii., 263.
The Court, in making a settlement of the wife's property, always attends to
the interests of the children, because it is supposed that in so doing it is carrying
into ett'eot her own desires to provide for her offspring. But if she dissents, the
Court withholds all rights from the children : Story, vol. ii. 678 ; see observations
of Lord Cottenham in Hodgens v. Hodgens, 11 Bli. 104.
If there has been a decree for a settlement on the wife, the children are entitled
to the benefit of it, although the wife may have died before proposals for a settle-
ment have been carried in : De La Garde v. Lempriere, 6 Beav. 344, 345.
The right of the children to the benefit of a settlement attaches upon the wife's
instituting proceedings for that purpose ; and if she should die pending the
proceedings without waiving the right to a settlement, the children may enforce
their claim : Bowe v. Jackson, 2 Dick. 604 ; Mutray v. Elibanh, 13 Ves. 1 ;
Orove V. Perkins^ 6 Sim. 576.
The wife's equity for a settlement does not depend on any right of property in
her, but rests on the control which Courts of Equity exercise over property falling
under their dominion : Osborn v. Morgan, 9 Hare, 432. Therefore where a testator
gives a share of his property to a married woman, and appoints her husband exe-
cutor, who is indebted to the testator's estate, the husband not being entitled to
receive anything, no equity to a settlement arises in favour of the wife : Knight
V. Knight, L. E. 9 Eq. 487.
Amount to be brought into Settlement.
The amount settled by the Court generally depends upon the circumstances of
each case. If the husband is living with the wife, and maintaining her and her
children, he will, in the absence of special circumstances, be allowed the interest
upon the whole so long as he maintains her : Bullock v. Menzies, 4 Ves. 798 ;
Sleech v. Thorington, 2 Ves. Sen. 560.
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MAERIBD WOMEN. 143
Where the hvisband has become bankrupt and unable to support his wife, the
whole fund has been ordered to he settled : Re Cutler, 14 Beav. 220 ; Marshall
V. Fowler, 16 Beav. 249 ; Be Kineaid, 1 Drew. 326 ; Francis v. Brooking, 19
Beav. 347; Be Wilson, 1 Jur. (N.S.) 569; Smith v. Smith,, S Giff. 121; Dun-
combe V. Oreenacre, 29 Beav. 578 ; 7 Jur. (N.S.) 650.
And where the husband, a bankrupt, had received considerable sums from the
wife's family : Oardner v. Marshall, 14 Sim. 575.
And where the husband had been guilty of gross misconduct : Barrow v. Bar-
row, 5 De G. M. & G. 782.
Where the husband has become bankrupt, and deserted his wife, the whole
fund has been ordered to be settled : Dunkley v. Dunkley, 2 De G. M. & G. 390 ;
see too, Scott v. Spashett, 3 Mao. & G. 599 ; Oent v. Harris, 10 Hare, 384.
So, too, where the husband has- deserted his wife, and made her no allowance
for maintenance : Gilchrist v. Oatori 1 De G. & Sm. 188 ; 9 Jur. (N.S.) 740 ; Be
Cutler, 14 Beav. 220 ; Be Disney, 2 Jur. (N.S.) 206.
And where the husband, although he had not deserted, was unable to maintain
the wife: Be Welchman, 1 Giff. 31 ; 6 Jur. (N.S.) 886.
Where the husband had deserted his wife, but maintained the children, the
Court, in settling the whole fund, gave liberty to the husband to apply after the
death of the wife for payment of any part of the income to him : Eernick v.
Kernick, 4 New Kep. 533.
But in the absence of special circumstances against the husband's right, such
as bankruptcy, inability to maintain his family, or misconduct, it has been usual
to settle half the wife's fortune : Napier v. Napier, 1 D. & War. 407; Coster v.
Coster, 9 Sim. 597; Bagshawe v. Winter, 5 De G. & Sm. 466; Be Suggitt's
Trusts, L. B. 3 Ch. 215. Three fourths have been settled : Spirett v. Willows,
L. E. 1 Ch. 520. And two thirds : Carter v. Taggart, 5 De G. & Sm. 49.
But in determining the proportion of the fund to be settled, the Court is bound
by no fixed rule, but will exercise its discretion according to the circumstances of
each case : Be Suggitt's Trusts, L. E. 3 Ch. 215 ; Oiacometti v. Frodgers, L. E.
8 Ch. 338.
Where the wife has an ample separate property secured to her, the Court has
refused to settle any portion of the fund in Court : Aguilar v. Aguilar, 5 Madd.
414 ; Be Erskine, 1 K. & J. 302 ; Oiacometti v. Frodgers, L. E. 14 Eq. 253 ;
L. E. 8 Ch. 338.
Where the fund is under £200, it is the usual practice not to divide it : Be
Kineaid, 1 Dr. 326; Ward v. Yates, 1 Dr. & Sm. 80; Be Tuhbs, 8 W. E. 270.
FoEM OF Settlement — Order.
With respect to the form of settlement, the principle on which the Court acts
is to let in the equity of the wife and children, and to that extent to exclude the
husband's marital right. But as soon as that equity is satisfied, the provisions of
the settlement ought to end, and the marital right ought to return : Be Suggitt's
Trusts, L. E. 3 Ch. 215, 218, per Lord Cairns.
The usual practice is to settle the property in trust for the wife for her separate
use for life, without power of anticipation, and after her death for her children,
and in default of children in trust for her husband : Spirett v. Willows, L. E.
1 Ch. 520; L. E. 4 Ch. 407; Be Suggitt, L. E. 3 Ch. 215; Croxton v. May,
L. R. 9 Eq. 404.
In Carter v. Taggart, 1 De G. M. & G. 286, the ultimate limitation was, after
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144 MAREIED WOMEN.
the death of the wife, and failure of children of her present or any future mar-
riage, for the benefit of the husband, but only in the event of his surviving the
wife : Order, p. 140.
But this limitation is more usually made in favour of the husband, whether he
survives the wife or not : Spirett v. Willmvs, L. R. 1 Ch. 520 ; L. B. 4 Ch. 407 ;
Suggitt's Trusts, L. R. 3 Ch. 215 ; Groxton v. May, L. R. 9 Bq. 404 ; Orders,
p. 140.
Waivee of Settlement.
Order to attend Commissioners.
Let — , the wife of — , attend — , or any two of them, who are to
examine her secretly, and apart from the said A., her husband, to
whom, and in what manner, and for what purpose, she is willing and
desirous that the £ — Annuities [and — cash] in Court^to the credit of,
&c., be transferred, paid, applied, or otherwise disposed of; and to take
her examination in writing, which is to be signed by her, and certified
by them, and the signing of such examination, and of the certificate
of the said — , or such of them as shall act under this order, is to be
verified by affidavit; But previously to such examination the said A.
and B. his wife are severally to make an affidavit that no settlement
or agreement for a settlement whatsoever hath been made or entered
into before, upon, or since their marriage ; or in case any such settle-
ment or agreement for a settlement hath been made or entered into as
aforesaid, then the said A. and B. his wife are by their affidavits to
identify such settlement or agreement for a settlement, and state that
no other settlement or agreement for a settlement has been made or
entered into as aforesaid.
Examination in Court.
A. B., the wife of C. D., being present in Court [on the — day of
— ], and examined by the judge, and being willing and desirous that
the sum of £ — Annuities [or, — cash] hereinafter mentioned should be
transferred [or, paid] to her husband, the said C. D., Let the said sum
of £ — Annuities [or, — cash] in Court to the credit of, &c., be transferred
[or, paid] to the said C. D. in right of his wife, the said A. B.
Settlement waivkd.
Tt is competent for the wife at any time pending the proceedings, and before a
settlement under the decree is completed, or at least before proposals are made
under that decree, by her consent given in open Court or under a commission, to
waive a settlement, and to agree that the equitable fund shall be wholly or
absolutely paid over to her husband : Stor}', vol. ii., 679 ; JTodgens v. Eodgens,
11 Bli. 103.
The mode of taking this consent is by examination of the wife in Court by the
judge, where she is able to attend ; and of this examination the registrar takes a
note, which is entered in the order disposing of the fund. Where the wife is
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MARRIED WOMEN. U5
unable to attend the Court, her examination must be taken by commissioners
named in an order which must be obtained for that purpose : see Order, supra.
Where the married woman is abroad, an order may be. made appointing com-
missioners resident there : Parsons v. Dunne, 2 Ves. Sen. 60 ; Gibbons v. Kibbry,
7 Jur. (N.S.) 1298 ; 10 W. R. 55 ; Wedderburn v. Wedderburn (M. R.), Aug. 5,
1864 ; cited in Daniell, 5th ed. 89.
But where a female ward of Court has married without the authority of the
Court, the Court will not permit the wife to waive a settlement : Hodgens v.
Eodgens, 11 Bli. 103 ; Like v. Beresford, 3 Ves. 506 ; Stackpoole v. Beaumont,
3 Ves. 89.
'The Court has refused to the wife her claim to a settlement where she was
living In adultery : Carr v. Estabrooh, 4 Ves. 146 ; but see Sidney v. Sidney,
3 P. Wms. 269 ; Greedy v. Lavender, U Jur. 608 ; 13 Beav. 62.
Where female wards of Court, married without the consent of the Court, after-
wards live in adultery, the Court will enforce a settlement : Ball v. Ooiitts,
1 V. & B. 292.
.Separate Estate charged — Inquireks — Costs.
Let the decree dated, &o., be varied, and as varied be as foUovirs : —
.Declare that the separate property of the Deft S. H. vested at this
present date in her, or in any other person or persons in trust for her,
is chargeable with the payment of the £225 mentioned in the agree-
ment of the 21st of January, 1868, in the pleadings mentioned, with
interest at the rate of £4 per cent, from the — day of — , and the
costs hereinafter directed to be paid. And this Court doth charge
the same accordingly. Let the following account and inquiries be
taken and made: — 1. An account of what is due to the Pit for prin-
cipal and interest as aforesaid under the said agreement, and for
the costs of this suit (including the costs of this appeal), to be taxed,
&c. 2. An inquiry of what the Deft S. H.'s separate propeity con-
sists at this present date, and in whom it is now vested. 3. An
inquiry whether any and what sum is due in respect of rates or
taxes of the leasehold house and premises situate, &c., for which
the Defts J. P., S. H., and F. P.; or either of them, are or is liable, or
by the non-payment of which they or either of them may be damni-
fied. Let such sum (if any) be retained and satisfied out of what
shall be certified to be due on taking the account No. 1. Let the Deft
P. P. be at liberty to retain his costs of this suit, to be taxed by the
taxing master as between solicitor and client, out of any trust funds
(being the separate property of the said S. H.) that may be in his
hands. Let the further consideration of this cause, and of the co.sts of
•the Deft P. P., so far as they shall not be retained by him out of the
said separate estate as aforesaid, be adjourned. Let the sum of £20
deposited with the registrar on setting down the petition of appeal,
be retained until further order. — Liberty to apply. Picard v. Sine,
L. R. 5Ch. 274.
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146 MARRIED WOMEN.
Charge of Separate Estate.
A married woman's separate estate may become bound by her participation in
a fraud : Savage v. Foster, 9 Mod. 35 ; Jackson v. Eohhouse, 2 Mer. 483 ;
Vaughan v. Vanderstegen, 2 Drew. 408 ; Eohday v. Peters, 28 Beav. 354, 360 ;
Sharp V. Foy, L. R. 4 Ch. 35.
And tbe separate estates of married women are bound by their debts contracted
with reference to and upon the faith of those estates : Tullett v. Armstrong, 4
Beav. 319 ; Johnson v. Gallagher, 3 De Gr. F. & J. 494; Bolden v. NUholay, 3 Jur.
(N.S.) 884; Matthewman's Oase, L. S. 3 Eq. 781; Butler v. Gumpston,
L. R. 7 Eq. 16 ; Chubb v. Stretch, L. B. 9 Eq. 555.
Where a married woman having separate estate and living apart from her hus-
band contracts debts, the Court will impute to her the intention of dealing -with
her separate estate : Johnson r. Gallagher, 3 De Gt. F. & J. 494, 521.
Before a creditor can enforce any remedy against the separate estate of a mar-
ried woman he must get a decree, unless he can make out a contract speci-
fically charging a particular fund : McHenry v. Davies, L. R. 6 Eq. 463 ;
Johnson v. Gallagher, 3 De G. F. & J. 494, 519.
A married woman may make her separate estate liable by parol engagement as
well as by express contract, but there must be some engagement or contract :
Wright v. Chard, 4 Drew. 673 ; 5 Jur. (N.S.) 1334 ; 1 De G. P. & J. 567.
Where the married woman has a life estate with a general power of appoint-
ment by deed or writing or will, and the power is exercised, the corpus of the
property has been held liable to the debts of the married woman : Allen v. Pap-
worth, 1 Ves. Sen. 163 ; ffulme v. Tenant, 1 Bro. C. C. 15 ; Eealiey v. Thomas,
15 "Ves. 596 ; Johnson v. OallagUr, 3 De G. P. & J. 494, 517 ; Bolden v. Nicho-
lay, 3 Jur. (N.S.) 884. But see Shattoch v. Shattock, L. R. 2 Eq. 182, 188.
Where the married woman has a power of appointment and there is a limitation
over in default of appointment, the debts of the married woman do not prevail
against the parties entitled in default of appointment : NaU v. Puntor, 5 Sim.
555 ; Johnson v. Gallagher, 3 De G. F. & J. 494, 517.
W^here the married woman has an estate for life with power of appointment by
will only, and the power is exercised, but not for creditors, her separate property is
not liable after her decease for her debts : see Norton v. Turvill, 2 P. Wms. 144 ;
Sockett V. Wray, 4 Bro. 0. C. 483 ; Etighes v. Wells, 9 Hare, 749 ; Vaughan v.
Vanderstegen, 2 Drew. 165 ; Shattock v. Shattock, L. R. 2 Eq. 182.
As a general rule the separate estate of a married woman is not liable for
breaches of trust or torts committed by her : Wain/ord v. Eeyl, L. R. 19 Eq. 321.
Married Women's Property Act.
33 & 34 Vict. c. 93.
" The wages and earnings of any married woman acquired or gained by hei
after the passing of this Act in any employment, occupation, or trade in which
she is engaged, or which she carries on sefiarately from her husband, and also any
money or property so acquired by her through the exercise of any literary,
artistic, or scientific skill, and all investments of such wages, earnings, money, or
property, shall be deemed and taken to be property held and settled to her sepa-
rate use, independent of any husband to whom she may be married, and her
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MARRIED WOMEN. 147
receipts alone shall be a good discharge for such wages, earnings, money, and
property": 33 & 34 Vict. c. 93, s. 1.
Deposits in savings banks by a married woman are also' to be deemed her sepa-
rate property : see sect. 2.
" Any married woman, or any woman about to be married, may apply to the
Governor and Company of the Bank of England, or to the Governor and Company
of the Bank of Ireland, by a form to be provided by the governor of each of the
said banks and company for that purpose, that any sum forming part of the
public stocks and funds, and not being less than £20, to which the woman so
applying is entitled, or which she is about to acquire, may be transferred to or
made to stand In the books of the governor and company to whom such applica-
tion is made in the name or intended name of the woman as a married woman
entitled to her separate use, and on such sum being entered in the books of the
said governor and company accordingly, the same shall be deemed to be the
separate property of such woman, and shall be transferred and the dividends paid
as if she were an immarried woman : provided that if any such investment in
the funds is made by a married woman by means of moneys of her husband with-
out his consent, the Court may, upon an application under sect. 9 of this Act,
order such investment and the dividends thereof, or any part thereof, to be trans-
ferred and paid to the husband " : 33 & 34 Vict. c. 93, s. 3.
" Similar provisions are made as regards iully paid-up shares, debentures, de-
benture stock, or stock of any incorporated or joint stock company, to the hold-
ing of which no liability is attached, and to which the woman applying is
entitled : see sect. 4.
And similar provisions as to any share, benefit, debenture, right, or claim in
any industrial and provident society, friendly society, benefit building society
duly registered, &c. : see sect. 5.
But deposits of money in fraud of creditors of the husband are invalid : see
sect. 6.
" Where any woman married after the passing of this Act shall during her
marriage become entitled to any personal property as next of kin, or one of the
next of kin of an intestate, or to any sum of money not exceeding £200 under
any deed or will, such property shall, subject and without prejudice to the trusts
of any settlement affecting f&e same, belong to the woman for her separate use,
and her receipts alone shall be a good discharge for the same " : sect. 7.
This Act does not empower a married woman entitled under sect. 7 to stock
for her separate use to transfer the same without the concurrence of her husband
until the stock has been placed under sect. 3 in her name as a married woman
entitled for her separate use : Eoward v. Banh of England, L. R. 19 Eq. 295. .
Where any freehold, copyhold, or customary property shall descend upon any
woman married after the passing of this Act as heiress or co-heiress of an intes-
tate, the rents and profits of such property shall, subject and without prejudice to
the trusts of any settlement affecting the same, belong to such woman for her
separate use, and her receipts alone shall be a good discharge for the same " : 33
& 34 Vict. c. 93, s. 8.
" In any question between husband and wife as to property declared by this Act
to be the separate property of the wife, either party may apply by summons or
motion in a summary way, either to the Court of Chancery in England or Ire-
land, according as such property is in England or Ireland, and thereupon the
judge may make such,order, direct such inquiry, and award such costs as he
I, 2
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148 MARRIED WOMEN.
shall think fit : provided that any order made by such judge shall be subject to
appeal," &c. : 33 & 34 Vict. c. 93, s. 9.
A policy of insurance effected by any married man on his own life, and ex-
pressed upon the face of it to be for the benefit of his wife or of his wife and
children or any of them, shall enure and be deemed a trust for the benefit of his
wife for her separate use, and of his children or any of them according to the
interest so expressed, and shall not, so long as any object of the trust remains, be
subject to the control of the husband or to his creditors, or form part of his estate :
33 & 34 Vict. c. 93, s. 10.
" A husband shall not, by reason of any marriage which shall take place after
this Act has come into operation, be liable for the debts of his wife contracted
before marriage ; but his wife shall be liable to be sued for, and ^ any property
belonging to her for her separate use shall be liable to satisfy, such debts as if
she had continued unmarried " : 33 & 34 Vict. c. 93, s. 12 ; see Sanger v. Sanger,
L. R. 11 Eq. 470.
Maeried Women's Property Amendment Act.
37 & 38 Vict. c. 60.
The husband and wife may be jointly sued for the debts of the wife contracted
before marriage where the maniage has taken place after the 30th of July, 1874,
to the following extent : —
(1.) The value of the personal estate in possession of the wife which shall have
been vested in the husband :
{2.) The value of the choses in action of the wife which the husband shall
have reduced into possession, or which with reasonable diligence he
might have reduced into possession :
(3.) The value of the chattels real of the wife which shall have vested in the
husband and wife :
(4.) The value of the rents and profits of the real estate of the wife which the
husband shall have received, or with reasonable diligence might have
received :
(5.) The value of the husband's estate or interest in any property, real or
personal, which the wife in contemplation of her marriage with him shall
have transferred to him or any other person :
(6.) The value of any property, real or personal, which the wife in contempla-
tion of her marriage with the husband shall with his consent have trans-
ferred to any person with the view of defeating or delaying her existing
creditors :
■ Provided that when the husband after marriage pays any debt of his wife, or
has a judgment hand fide recovered against bim in any such action as in this Act
mentioned, then, to the extent of such payment or judgment, the husband shall
not in any subsequent action be liable : 37 & 38 Vict. c. 50, ss. 1-5.
Protection Orders.
A protection order under 20 & 21 Vict. c. 85, places the wife " in the like
position in aU respects with regard to property as she would be if she had obtained
a decree of judicial separation," in which case " she shall whilst the separation
shall continue be considered- as a. feme sole with respect to property of every de-
scription which she may acquire, or which may come to or devolve upon her " :
20 & 21 Vict. c. 85, ss. 21, 25. See Re Insole, L. R. 1 Eq. 470 ; Johnson v.
Lander, L. R. 7 Bq. ^^^j^fjf^^"^^ ?^^/4f^K^¥^"™'""^' ^' ^' ^° ^1' ^''^
( 149 )
CHAPTER XIX.
ACCOUNT.
Account of Dealings and Transactions — Further Consideration adjourned. '
Let an. account be taken of all dealings and transactions between
the Pit and Deft from the — ■ day of — . Let the further consideration
of this cause be adjourned. — Liberty to apply.
Account — Payment — Liberty to apply.
Let an account be taken of all dealings and transactions between the
Pit and Deft from the — day of — . Let what on taking the said
account shall be certified to be due from either of the parties to the
other of them be (within one month from the date of the chief clerk's
certificate) paid by the party from whom to the party to whom the
same shall be certified to be due. — Liberty to apply.
Account — Special Directions — Boohs to be prima facie Evidence.
Let an account be taken, &c. Let the books of account of the Pits
in the first-mentioned cause — that is to say, the day-book, ledger, &c. —
being the books in which the accounts required to be taken between
the Pits and the Deft "W. have been kept, be taken as prima facie evi-
dence of the truth of the matters therein contained, with liberty for
the Deft W. to take such objections thereto as he may be advised.
Eviart V, Williams, 7 De G. M. & G. 68 ; Seton, 106.
Similar Order — Liberty to surcharge a/nd falsify.
Let the following accounts be taken, &c. Let the books of account
kept by the Deft B. at the mill in the pleadings mentioned be received
as prima facie evidence of the receipts and payments therein contained
so far as the entries in the said books were made down to the 18th of
September, 1851, when the Pit 0. was dismissed from being manager
of the said mill, but with liberty to the Pits to surcharge and falsify
any of the entries in such books. — Adjourn further consideration. —
Liberty to apply. Ogden v. Battams, 1 Jur. (N.S.) 791.
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150 ACCOUNT.
Settled Accounts to stand.
Let an account be taken, &c. Let what on taking the said accounts,
&c., be paid, &c. And in case it shall appear that any account has
been settled between the parties, the same is not to be disturbed.
Settled Account to he opened.
Declare that the Pit is not bound by the settlement of the accounts
of the — day of — in the pleadings mentioned. And Declare tha t
such accounts ought to be opened. Let the following accounts and
inquiries be taken and made, &c., with liberty for the master to state
specially any difficulties arising from lapse of time or loss of evidence
and documents. — Adjourn further consideration. Allfrey v. Allfrey,
1 Mac. & G. 87.
Similar Order — Payment of Costs of Suit relating to the Accounts set aside.
Declaee that the three stated accounts dated, &e., ought to be
opened and set aside, and decree the same accordingly. Let a general
account be taken of all dealings and transactions between the Pits or
either of them and the Deft, and also of the value of any timber, &c.
Let what on taking the said account, &o., be paid, &c. Deft to pay
Pits' costs of so much of the cause as relates to setting aside the said
stated accounts, and Let the consideration of the rest of the costs of
suit be reserved. — Liberty to apply. Mowarth v. Powell, 1743, A. 660 ;
Seton, 107.
Account — Jurisdiction.
" The Court or a judge may at any stage of the proceedings in a cause or
matter direct any necessary inquiries or accounts to be made or taken, notwith-
stanning that it may appear that there is some special or further reUef sought for,
or some special issue to be tried, as to which it may be proper that the cause or
matter shouM proceed in the ordinary manner :" Jud. Eules, Order 33. As to
accounts in district registry, ante, p. 56. >
Where upon a bill for an account it was clear that the relief could be satisfac-
torily given at common law, equity did not interfere: Dinwiddie v. Bailey,
6 Ves. 136, per Lord Eldon.
And to maintain a bill for'an account it must have been shewn that the case
was one in which the deft is bound to keep an account : Smith v. Leveaux,
12 W. E. 31, reversing S. C. 1 H. & M. 123.
Upon a question of account where Courts of Equity and Common Law had
concurrent jurisdiction, if a question arose whether the remedy for an account
should be at law or in equity it was decided with a view to the most convenient
mode of having the question decided : North Mastem By. Qo. v. Martin, 2 Ph.
758, per Lord Cottenham ; see also Ryle v. Haggle, 1 Jac. & W. 234 ; Mackenzie
V. Johnston, 4 Mad. 373 ; Adley v. Wliitstahle Company, 17 Ves. 315 ; Shepard
V. Brown, 4 Giff. 208 ; Makepeace v. Rogers, 11 Jur. (N.S.) 215.
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ACCOUNT. 151
Courts of Equity have giveu relief, although the receipts and payments are
wholly on one side : see observations in Heming v. Pv^h, 9 Jur. (N.S.) 1124.
As a general doctrine in matters of account growing out of privity of contract,
Courts of Equity have had a general jurisdiction where there are mutual accounts
(and a fortiori where these accounts are complicated) ; and also where the accounts
are on one side, but a discovery is sought, and is material to the relief : Story,
vol. i. p. 449 ; Mackenzie v, Johnston, 4 Mad. 374 ; Massey v. Banner, 4 Mad. 416.
But if there had been a bill for an account in respect of particular items, and
the pit failed in sustaining the demand upon those particular items or any number
of particular items, and the bill contained a general vague charge of voluminous
and intricate accounts, the bill was open to demurrer for want of equity : Darthez
V. Clemens, 6 Beav. 165.
And where parties have elected to proceed at law, equity would not stay the
proceedings at law simply on the ground that it could more conveniently dispose
of the suit : Scott v. Corporation of Liverpool, 5 Jur. (N.S.) 105 ; 7 W. B. 153.
Statute of Limitations.
" No claim of a cestui que trust against his trustee for any property held on an
express trust, or in respect of any breach of such trust, shall be held to be barred
by any Statute of Limitations :" Judicature Act, 1873 (36 & 37 Vict. c. 66),
s. 25, sub-s. 2.
Mode of taking Account — Special Directions.
In any case where an account is required to be taten, the Court may give such
special directions as it may think fit with regard to the mode in which the account
should be taken or vouched, and such special directions may be given either by
the decree or order, or by any subsequent order or orders, upon its appearing to
the Court that the circumstances of the case are such as to require such special
directions : 15 & 16 Vict. c. 86, s. 54.
And particularly it shall be lawful for the Court, in cases where it shall think
fit so to do, to direct that on taking the account the books of account in which the
accounts required to be taken have been kept, or any of them, shall be taken as
prima facie evidence of the truth of the matters therein contained, with liberty
to the parties interested to take such objections thereto as they may be advised :
Ibid.
Under this Act the Court has power to give special directions in taking an
account directed by a decree dated previously to the Act : Ewart v. Williams,
7 De G-. M. & G. 68.
The chief clerk may not take books as prima facie evidence without an order
of the Court : Coohes v. Cookes, 11 W. B. 871.
But where the accounts had been taken in a special manner, without the
authority of an order, and the parties had not objected, the Court refused to dis-
charge the certificate : Newberry v. Benson, 23 L. J. (Ch.) 1003.
The Court in decreeing an account may direct it to be taken with the admission
of certain documents or teatimonies not having the character of legal evidence :
Dan. 5th ed. 1130; Lupton v. White, 15 Ves. 432, 443.
But the Act does not authorize such a substantial variation of a decree as to
add a direction to make annual rests to a decree against a mortgagee in possession :
Nelson V. Book, 3 Dc G. & J. 119 ; 5 Jur. (N.S.) 28.
In a suit to redeem certain manufacturing premises which had been conveyed
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152 ACCOUNT.
to the deft, and for an account, the Court ordered that the books of account kept
by the deft at the manufactory, but to which the pit had access, should be taken
as prima facie evidence of all moneys received or paid by the deft; with liberty
to the pit to surcharge and falsify: Ogden v. Battams, 1 Jur. (N.S.) 791;
Order, p. 149.
And in an administration suit the accounts kept by the executor and trustee,
which were accessible to the tenants for life, and had been examined and signed by
their husbands, were ordered to be taken, up to the date of the signatures, as
prima facie evidence in taking the income account as against the tenant for life,
but not in taking the capital account as against the remainderman : Dan. 5th ed-
1131, citing Banks v. GartwrigJit, 15 W. R. 417.
And the meaning of the section is, that where vouchers have been lost, or
accounts cannot be taken in the ordinary way, the Court may give special direc-
tions for the taking of such accounts ; but such directions will not be given merely
to save expense, or unless ordinary evidence cannot be obtained: Morgan, 219;
lodge V. Pritchard, 3 De G. M. & G. 906 ; Ewart v. Williams, 7 De G. M. &
G. 74.
The special directions have sometimes been given at the hearing : Ogden v.
Battnm, 1 Jnr. (N.S.) 791 ; Sleight v. Lawson,'3 K. & J. 292. But they are more
usually given in the proceedings at Chambers : Attomey-Oeneral v. Attwood,
9 Hare, App. 56, n.
If any question arise as to the principle on which the account should be taken,
an application to the Court may be made for special directions : Robertson v. Norris,
1 Giflf. 428.
Where any account is directed to be taken the accounting party, unless the
judge shall otherwise direct, shall make out his account and verify the same by
affidavit. The items on each side of the account shall be numbered consecutively,
and the account shall be referred to by the affidavit as an exhibit, and be left in
the Judge's Chambers : Cons. Ord. 35, r. 33.
Any party seeking to chnrge any accounting party beyond what he has by his
account admitted to have received, shall give notice thereof to the accounting
party, stating, so far as he is able, the amount sought to be charged and the par-
ticulars thereof, in a short and succinct manner : Cons. Ord. 35, r. 34.
As to advertisements, and claims made under them: see Cons. Ord. 35, rules
35-40; and Gen. Order, May 27, 1865.
Where by any decree or order accounts are directed, each direction is to be
numbered : Cons. Ord. 23 , r. 15.
Where an account is directed, the certificate shall state the result of such
account, and not set the same out by way of schedule, but shall refer to the
account verified by the affidavit filed, and shall specify by the numbers attached
to the items in the account which, if any, of such items have been disallowed or
varied ; and shall state what additions, if any, have been made by way of sur-
charge : Cons. Ord. 35, r. 46.
Evidence at HeaTiing — Frame of Deceee.
In a suit for account, the only evidence necessary at the hearing is that which
proves the deft to he an accounting party. Evidence as to particular items is, as
a general rule, irrelevant at the hearing : Law v. Hunter, 1 Buss. 100, 102 ;
Walker v. Woodwat'-d, Ibid. 107, 110; Hwnhy v. //tinker. Ibid, 89 ; Waters v,
Earl of Shaftesburg, 12 Jur. (N. vS.) 3; 14 W. R. 259.
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> ACCOUNT. 153
But such evidence will not be rejected if brought for the general purpose of
proving that the pit is entitled to an account: Tmilin v. Tomlin, 1 Hare, 241, 245.
The Court will not, upou the original hearing of a suit for an account, declare
that a particular property forms part of the assets: S. C.
Nor, where the right or liability is in question in the cause, and not particular
items of account, is it proper, for the purpose of the hearing, to examine witnesses
upon particular items not specially charged in the pleadings to be erroneous '■
Forsyth v. Mlice, 2 Mac. & G. 209.
It has not been incumbent upon a pit in a suit for account to offer to pay the
balance if found due from him. There is sufficient jurisdiction in the Court
to compel the pit to account : Clarke v. Tipping, 4 Beav. 588 ; 6 Jur. 25 ; Barker
V. Walters, 8 Beav. 92; Toulmin v. Beid, 14 Beav. 499.
And although a decree in a case which the pit ought himself to account is pre-
faced by a submission to account, yet a bill could not be demurred to for want of
such submission : Inman v. Wearing, 3 De G. & Sm. 733.
But where a mortgagor obtains a decree for an account, but neither the bill nor
decree contained the usual offer to pay on the part of the pit, the Court refused,
upon further directions, to order the pit to pay a balance found due from him :
Hollis V. Bidpeet, 13 W. R. 492.
Where the proceedings have been instituted by a creditor suing on behalf of
himself and the other creditors, if the executor or administrator admit assets, the
general account is not directed, but an order is made for payment of the pit's debt :
Woodgate v. Field, 2 Hare, 211 ; Story, 10th ed. vol. i. p. 547.
No rests are made unless directed by the decree : Oould v. Tancred, 2 Atk.
533 ; Willis v. Bunt, 1 Madd. 13.
Where rests are to be made a balance is struck at each rest, which is directed
by deducting receipts from payments : Baphael v. Boehm, 11 Ves. 92.
And where a decree directs computation of interest and rests to be made, the
object of that direction is to charge compound interest, the balance of principal
and interest being carried forward at each rest as an item in the amount producing
interest : S. C. ; Knott v. Cottee, 16 Jur. 752.,
CoSTS.
Where the costs are partly disposed of at the hearing, the decree reserves the
further consideration of the costs.
But where the Court makes no order at the hearing as to costs, it is not neces-
sary that the costs should be reserved by the decree : HoUis v. Bastard, 2 W. E.
47.
Where the costs of suit are given at the hearing, the subsequent costs of
carrying the decree into effect are included, unless further consideration is
reserved.
These are general rules, and apply to all suits.
Settled Accounts — Opening — Stjrchaeging — Falsifying.
The direction in a decree that stated or settled accounts are not to he disturbed
is generally inserted where a settled account has been insisted upon and proved
at the hearing : Dan. 5th ed. 1136 ; Cole v. Gole, cited 11 Ves. 579 ; Buckeridge
v. Whalley, 33 L. J. (Oh.) 649.
But a general direction that stated or settled accounts arc not to be disturbed.
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154 AOCOUKT.
applies only to accounts between pit and deft, and not to accounts between defts :
Carmkhael v. Carmichael, 'A Phil. 101 ; 10 Jur. 908.
Where there is no such direction in the decree, settled accounts will be disre-
garded : Fitzpatrick v. Mahoney, 1 J. & Lat. 84 ; Carmichael v. Carmichael,
2 PhU. 101 ; 10 Jur. 908. Except under accounts in an administration suit :
Frewen v. Wattm, 31 Beav. 315.
If a party seeks to open a settled account, it is not necessary that he should at
the hearing prove all the errors stated in the bill : Anon., 2 Preem. 62 ; Chambers
V. Ooldwin, 5 Ves. 834, 837 ; Dawson v. Dawson, 1 Atk. 1 ; cited Dan. 5th ed.
577.
Where the Court opens the account, the parties are not bound by any deduc-
tions they may have originally agreed to make : Osborne v. Williams, 18 Ves.
383.
If a party can shew an omission for which there ought to be credit, it will be
added — which is a " surcharge " — or if any wrong charge is inserted, it will be
deducted — which is a " falsification " : Pitt v. Cholmondeley, 2 Ves. 565 ; Beigh-
ington v. Grant, 1 Phil. 600.
Where only ereors or mistakes are shewn to exist in a settled account, the
account will not be opened, but liberty will be given to " surcharge " and
" falsify " it : Vernon v. Vawdry, 2 Atk. 119 ; Allfrey v. Allfrey, 11 Jur. 981 ;
1 Mac. & G. 87, 94 ; 13 Jur. 269.
And where a settled account has been suggested, but not proved, the Court will
sometimes order the accounts to be considered as prima fade conclusive, but with
liberty to the pairties to shew error therein: English v. Baring, Seton, 108;
Stainton v. Carron Company, 24 Beav. 346 ; 3 Jur. (N.S.) 1235.
Where fraud is proved to have taken place in the settlement of an accoimt, the
Court will open the whole account, although settled for many years : Vernon v.
Vawdry, 2 Atk. 119 ; Walker v. Symonds, 3 Sw. 73 ; Allfrey v. Allfrey^ supra.
But where no injustice will be done to the objecting parties, the Court will
sometimes, even in cases of fraud, confine the decree to "surcharging" and
"falsifying": Allfrey y. Allfrty, supra.
Where upon the face of a settled account between attorney and client credit
has not been given for sums received, the Court will not allow the account to
stand, although no specific error may have been proved : Mathews v. Wallwyn,
4 Ves. 118, 125.
So, too, in cases of account settled between principal and agent (^Beaumont v.
Boultbee, 5 Ves. 485 ; 7 Ves. 599 ; 11 Ves. 358 ; Clarke v. Tipping, 9 Beav.
284), guardian and ward {Allfrty v. Allfrey, 10 Beav. 353 ; 11 Jur. 981 ; 1
•Mac. & Gr. 87 ; 13 Jur. 269), and trustee and cestui que trust: Clarke v. Farl of
Ormonde, Jac. 116.
Just Allowances.
In taking any account directed by a decree or order, all just allowances will be
made, without any direction for that purpose in the decree or order : Cons. Urd.
23, r. 16.
Where a substantive claim for a specific allowance has been made by the
answer, and no specific direction has been founded upon it in the decree, such
an allowance cannot be made under the head of just allowances : East India
Company v. Eeiyhley, 4 Madd. 16, 38, cited in Dan. 5th ed. 1136.
As to payments allowed under the head of "just allowances " and for commis-
sion, see Dan. 5th ed. 1134-5.
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AGUOUNT. 165
Set-off.
Independently of the Statutes of Set-off (2 Geo. 2, c. 22, and 8 Geo. 2, c. 24)
Courts of Equity, in virtue of their general jurisdiction, are accustomed to grant
relief in all cases where, although there are mutual and independent dehts, yet
there is a mutual credit between the parties, founded at the time upon the
existence of some debts due by the existing party to the others: Story, vol. i.
p. 694; Lord Jjinesborough v. Jones, 1 P. Wms. 326 ; Ex parte Flint, 1 Sw. 33.
As to equitable debts, or a legal debt on one side and an equitable debt on the
other, there is good reason to believe that wherever there is mutual credit between
the. parties touching such debts, a set-off is upon that ground alone maintainable
in equity, although the mere existence of mutual debts without such a mutual
credit might not, even in case of insolvency, sustain it : Story, vol. i. p. 696 ; Lord
Lanesborough v. Jones, supra ; Curran v. African Company, 1 Vern. 122.
The mere existence of cross demands is not sufficient : Whyte v. O'Brien,
1 S. & S. 551 ; Mawson v. Samuel, 1 Cr. & Ph. 161, 178 ; but see Clarke v. Cost,
1 Or. & Ph. 156, 160.
A joint debt could not be set off against a separate debt at law; but might in
equity, under particular circumstances ; as where there is a clear series of transac-
tions in which joint credit has been given : Vulliamy v. Noble, 3 Mer. 618, n. ;
Mx parte Stephens, 11 Ves. 24 ; but see JEx parte Slagden, 19 Ves. 464 ; jfo
parte Twogood, 11 Ves. 516 ; Aldis v. Knight, 2 Mer. 121.
Interest.
The general rate of interest'charged in the Court of Chancery against a trustee or
executor for mere negligence in not investing money which should be invested is
4 per cent. : Roche -f. Bart, 11 Ves. 58 ; Bamsay v. Avison, 3 Jui. (N.S.) 62.
And where he mates an improper investment he has been charged with interest
at 4 per cent., and annual rests directed : Knott v. Cottee, 16 Beav. 77.
Where an executor and trustee had for several years retained funds in his hands
uninvested which he ought to have invested, he was held not to be chargeable
with interest at 5 per cent., or upon the principle of annual rests, but with
simple interest at 4 per cent. : Attorney- General v. Alford, 4 De G. M. & G, 843.
But where an intention to appropriate the trust money has been shewn, the
trustee will be charged with 5 per cent., whether he had made it or not : Mayor
of Berwick v. Murray, 7 De G. M. & G. 518 ; see also Maphael v. Boehm, 11 Ves.
92 ; 13 Ves. 590 ; WiUiams v. Powdl, 15 Beav. 461, 388.
Appeopeiation.
In the case of running accounts between parties, where there are various items
of debt on one side, and various items of credit on the other side, occurring at
different times, and no special appropriation of the payments is made by either
party, each item of payment or credit is applied in extinguishment of the earliest
items of debt standing in the account until the whole payment or credit is
exhausted : Story, 451, and cases there cited.
Where there are no running accounts between the parties, and the debtor
himself makes no special appropriation of any payment, the creditor is generally
at liberty to apply that payment to any one or more of the debts which the
debtor owes him, whether it be upon an account or otherwise : Ibid.
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156 ACCOUNT.
Where there is a running account between a partnership firm and a creditor,
and the partnership dissolves by death or otherwise, the creditor continuing to
keep a running account with the survivors, the estate of the deceased partner is
only liable to the specific balance due to the creditor at the time of dissolution of
partnership : Devaynes v. Noble (Clayton's Case), 1 Mer. 572.
Under such circumstances there is no room for any other appropriation than
that which arises from the order in which the receipts and payments take place,
and are carried into account : S. C. per Sir William Grant ; see also Devaynes v.'
Noble (Sleech's Case), 1 Mer. 539 ; Palmer's Case, 1 Mer. 624 ; Pemberton v.
Oakes, 4 Euss. 154 ; Bank of Scotland, 8 CI. & F. 214.
i
Agency.
Solicitor and Client.
Let the following accounts be taken : — 1 . An acconnt of all sums
paid or advanced by the Deft to or for the use or on account of the
Pit. 2. An account of all sums of money received by or come to the
hands of the Deft to or for the use of the Pit or otherwise in respect
of any such payments and advances as aforesaid. 3. An account of
all dealings and transactions between the Pit and Deft. Let it be
referred to the taxing master to tax any bill of costs of the Deft
which the Pit is liable to pay. Let the amount of such costs (if any)
when so taxed be included in the said accounts. Let the balance due
from either of the parties to the other of them be certified. — Adjourn
further consideration. — Liberty, to apply. Hichinhotham v. Bisgood,
1848, A. 1019 ; Seton, 1112.
Principal and Steward.
Let the following accounts be taken : — 1. An account of all the
rents and profits of the messuages, lands, tenements, and heredita-
ments in the pleadings mentioned received by the Deft, or by any
other person or persons, &c., from the — day of — to the — day of — .
2. An account of all the timber and other trees and underwood which
during the said period have been cut upon the said lands or any of
them, and of the value thereof, and of the moneys arising from the
sale thereof. 3. An account of all dividends and interest which
during the period of the Pit's being the holder of the shares in — in
the Pit's bill mentioned, have been received by the said Deft, or by any
other person, &c., and also of all sums for which the said Deft has had
credit in account. 4. An account of the land tax which has accrued
or been payable to the Pit during the period of his being entitled to
the same, and of the moneys received on account thereof by the Defts,
or by any other person or persons, &c. — Adjourn further consideration.
—Liberty to apply. Hector v. JolUffe, 12 Sim. 398; Seton, 112.
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ACCOUNT. 157
Company and Agent.
Let an account be taken of the dealings and transactions of H. S.
the testator in the pleadings named on behalf of and with the Defts,
the Carron Company, from the 30th of June, 1825, down to the time
of his death ;, and in taking such account the books kept by H. S. and
proved in this cause are to be admitted as evidence for Pits and Defts.
Let the Defts the Carron Company within six weeks from the date
of this decree deliver to the Pits a list of such items appearing in
the books kept by the testator as agent of the company in London as
they desire to have vouched or accounted for. And in taking such
account the Pits, as executors of H. S., are to be charged with the
items specified, except so far as they §hall in the opinion of this
Court properly discharge themselves. Thereupon Let in all other
respects the accounts appearing in the said books kept by the said
testator as agent of the company in London be treated as settled
accounts, with liberty to the Pit and Defts to surcharge and falsify, as
they may be advised. And the Defts admitting that on the account, in-
tituled, &C.J the sum of £4018 10s. Id. was due from the said company
to H. S. at the time of his death, this Court doth not think fit to direct
any inquiry as to this account. Let an inquiry be made what shares
in the company the testator was entitled to at the time of his death.
Let an account be taken of what was due to him from the said com-
pany in respect of dividends or bonuses on such shares, and of what
has since accrued, and of what is now due from the company to his
estate in respect of any such dividends or bonuses. And if on taking
the accounts hereby directed it shall appear that at the end of each
or any year from the 30 June, 1825, a balance remains due from H. S.
to the company, or from the company to H. S., Let the amount of
buch balance be stated. — Adjourn further consideration. — Liberty to
apply. Stainton v. The Carron Company, 24 Beav. 346, 363.
1 Principal and Agent.
It has been said that there must he mutual demands, and that each of the
parties must have received and paid money on account of the other : Phillips v.
Phillips, 9 Hare, 471. But a bill would lie at any time by a principal against an
agent for an account : Makepeace v. Sogers, 11 Jur. (N.S.) 314 ; affirming S. C.
215.
A mere general averment, however, of receipts of money by an agent was not
sufficient to maintain a bill : Eemings v. Pugh^ 9 Jur. (N.S.) 424.
An agent not hound by contract, express or implied, to invest the moneys of
his principal, and against vphom no fraud is proved, is not chargeable, with
interest upon the .balances certified to be due from him until the date of the
chief clerk's certificate : Turner v. Burlcmshaw, L. B.' 2 Ch. 488.
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158 ACCOUNT.
ACCMUKTS BETWEEN TENANT FOE LlPE AND BemAINDEEMAN.
Inqmry as to Renewal Term — Computation of Interest.
Let an inquiry be made what was the worth of nineteen years of
STich term [renewal term twenty-eight years] at the rate E. B. [the
deceased tenant for life] paid for the same on the 30th April, 1735 ;
and on the sum so found Let compound interest be computed after
the rate of £4 per cent, per annum till the death of the said E. B.
And upon the sum thereby produced Let simple interest be computed
after the like rate. Let compound interest be computed after the rate
of £4 per cent, per annum on the sum of £139 5s. paid for the second
renewed term of fourteen years from the 12th March, 1868, the time
the same was paid, to the 2nd Febniary, 1775 [the date of the death
of the tenant for life]. And on the sum so produced Let simple
interest be computed at the like rate. Nightingale v. Lawson, 1 Bro.
440.
Inquiry as to Menewals, Fines, and Fees.
Let an inquiry be made what renewals have been made of the
testator's leasehold estates respectively, and when and by whom and
out of what funds the fines, fees, and expenses attending such renewals
have been paid. Declare that the Deft W. J. as tenant for life ought
to contribute to such renewals and to the fines, fees, and expenses
attending the same in proportion to such benefit as he has derived or
may derive from such renewals, and every or any of them. Let an
inquiry be made what sum ought to be paid or secured to be paid by
the said Deft W. J. in respect of such his proportion, and what security
he ought to give in respect thereof. But this direction as to such
security is to be without prejudice to the question whether the Deft
W. J. may not ultimately be liable to pay more or less than the sum
for which it shall be found that such security ought to be given.
Jones V. Jones, 5 Hare, 440.
Fines, dc— Value set on Life— Interest.
Their Lordships are of opinion that the amount to be paid by the
Pit for and in respect of the fines and expenses should be ascertained
by reference to the actual enjoyment by W. H. [the tenant for life],
and the value to be set upon the life of E. O. [the life agreed to be
valued] at the death of W. H., having regard to the agreement to have
a value set upon the life of F. G. at the death of W. H., and that com-
pound interest should be computed during the life of W. H. at the
rate of £4 per cent, per annum with annual rests on the proportion
payable by the Pit, and that simple interest at £4 per cent, should be
computed for what shall be found due at the death of W. H. for
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ACCOUNT. 159
principal and interest as aforesaid till payment to the Defts [claiming
tinder remainderman]. Bradford v. Brownjohn, L. K. 3 Ch. 711.
Account of Fines paid on Benewal — Sale or Mortgage.
Let an inquiry be made whether the sura of £6650 in the pleadings
mentioned to have been paid and advanced by the Pit for the renewal
of the said lease, or any other and what sum of money, having re-
gard to the situation of the parties interested in the D. Estate at
the time of such renewals, ought to have been paid as such fine. Let
an inquiry be made what is the amount of the fees and expenses
attending the said renewal which have been properly paid and ad-
vanced by the Pit. Let an inquiry be made how much of the feaid
fine, fees, and expenses with reference to the interest of the Pit in the
said estates ought to be borne and paid by him. — Directions for pro-
duction upon oath of papers, &c., and examination of witnesses upon
interrogatories, &c. Let what shall be found as proper to be borne and
paid by the Pit in respect of the said fine, fees, and expenses be de-
ducted from what shall be found ought to have been paid for such
fine, fees, and expenses upon the said renewal. Let the residue of the
said fine, fees, and expenses, together with the costs of this suit [such
costs to be taxed, &c.] be raised by sale or mortgage, as shall be most
convenient, of the said demised estate with the approbation of the
judge. And all proper parties are to join, &c., and to deliver, &c.
And in case the said residue of the said fine, fees, and expenses, and
the said costs, shall be raised by mortgage It is ordered that the
tenant for life of the said estate do keep down the interest of such
mortgage out of the rents and profits thereof. Let the money to
arise by such sale or mortgage be paid into Court, &c., and be applied,
&c. — Liberty to apply. Allan v. Backhouse, 2 V. & B. 70.
Appoetioument.
As a general rule an entire contract was not apportionable at common law
unless expressly stipulated by the parties : Co. Litt. 150 a ; Cutler v. Powell,
6 T. R. 320 ; Appleby v. Bodd, 8 Bast, 300 ; Ea-, ■parte Smyth, 1 Sw. 337, n.
But interest, whether the principal is secured by mortgage or by bond, notwith-
standing that it is expressly made payable half-yearly, might have been appor-
tioned, for though renewed at fixed periods it becomes due de die in diem : Etc
parte Smyth, 1 Sw. 349, n.
Where on the death of a tenant for life the lease under which the rent was
reserved determined, an apportionment is provided for : 11 Peo. 4, c. 19.
And all rents-service reserved on a lease by a tenant in fee or for life, or person
devising under a power, and all rents-charge and other rents, annuities, pensions,
dividends, moduses, compositions, and all other payments made payable or coming
due at fixed periods, of every description, under any instrument executed or (in
case of a will) coming into operation after the passing of that Act, are to be
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160 ACCOUNT.
apportioned whenever the interest of the person entitled to the' same detemiiues
by death or otherwise : 4 & 5 Will. 4, c. 22.
But in the case of rent reserved by lease of lands or tenements, the apportion-
ment is not to be claimed from the party liable under the lease, who is still to
make payment of the whole to the party who would have been entitled if the Act
had not been passed : ibid.
Where the tenant under a lease has been evicted of part of the land out of
which the rent issues, by a person having title paramount to that of the lessor,
or where part of it has been surrendered by the tenant to the lessor, or where tlie
lessor has aliened the reversion as to part, the rent will be apportioned : Co. Litt.
148 a.
'I'he old rule at common law was applicable to all periodical payments be-
coming due at fixed intervals, not to sums accruing de die in diem ; and annuities
therefore, and dividends on money in the funds, were formerly not apportionable :
Rashleiyh v. Master, 3 Bro. C. C. 101 ; Wilson v. Barman, 2 Ves. 672 ; Pearly
v. Smith, 3 Atk. 260.
But now "all rents, annuities, dividends, and other periodical payments in the
nature of income (whether reserved or made payable under an instrument in
-writing or otherwise) shall, like, interest on money lent, be considered as accruing
from day to day, and shall be apportionable iu respect of time accordingly " :
33 & 34 Vict. c. 35, s. 2.
" The apportioned part of any such rent, annuity, dividend, or other payment
shall be payable or recoverable in the case of a continuing rent annuity, or other
such payment when the entire portion of which such apportioned part shall form
part shall become due and payable, and not before, and in the case of a rent
annuity or other such payment determined by re-entry, death, or otherwise,
where the next entire portion of the same would have been payable if the same
had not so determined, and not before " : 33 & 34 Vict. c. 35, s. 3.
"The word 'rents' includes rent-service, rent-charge, and rent-seek, and also
tithes and all periodical payments or renderings in lieu of or in the nature of rent
or tithe. The word ' annuities ' includes salaries and pensions. The word ' divi-
dends' includes (besides dividends strictly so called) all payments made by the
name of dividend, bonus, or otherwise out of the revenue of trading or other
public companies, divisible between all or any of the members of such respective
companies, whether such payments shall be usually made or declart'd at any fixed
times or otherwise '' : 33 & 34 Vict. c. 35, s. 5.
A mortgagee who is not iu possession is not an assign of the mortgagor within
the meaning of the Apportionment Act of 4 & 5 Will. 4, c. 22, s. 2 : Be Marquis
of Anglesey's Estate, L. R. 17 Eq. 283.
Where a testator seised in fee devised real estate by a will dated before the Ap-
portioimient Act, 1870, and confirmed by a codicil dated after the Act, it was held
that the rents were apportionable between the executor and devisee : Gaprcn v.
Capron, L. E. 17 Bq. 288.
And the Act applies to all instruments, whether coming into operation before,
or not till after the passing of the Act : Be Cline's Estate, L. K. 18 Eq. 213.
Where a testator bequeathed the dividends and income of his share and interest
in a private trading partnership to A. for life, and after his death to his daughter
absolutely, and died in October, 1870, the profits realized during the year 1870
were held not to be "dividends" or "periodical payments" within the Appor-
tionment Act, 1870 : Jones v. Ogle, L. K. 14 Eq. 419 ; S. C, L. 11. 8 Ch. 192.
In many cases the Court of Chancery has directed an apportionment .where it
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ACCOUNT 161
would not have been given at Common Law. Thus the premium paid by an
apprentice has been ordered to be apportioned upon the bankruptcy of the master:
Hale V. Webl, 2 Bro. C. C. 78 ; Ex parte Sandby, 1 Atk. 149 ; Hirst v. Tdson,
13 Jur. 596.
So, too, in the case of a premium paid by an attorney under articles of clerk-
ship : Newton v. Rowse, 1 Vern. 460.
And where money is to be laid out in land if the party who is entitled to the
land in fee when purchased dies before it is purchased, the money being in the
meantime secured on mortgage, and the interest payable half-yearly, the interest
will be apportioned in Chanceiy between the heir and the administrator of the
party so entitled, if he dies before the half-yearly payment is due : Story, 10th
ed. vol. i. p. 479 ; Edwards v. Countess of Warwick, 2 P. Wms. 176 ; affirmed
2 Bro. P. C. 494.
And where portions are payable to daughters at eighteen or marriage, and until
the portions are due maintenance is to be allowed, payable half-yearly at specific
times, if one of the daughters come of age in an intermediate period the mainte-
nance will be apportioned in equity : Hay v. Palmer, 2 P. Wms. 501.
Where a leasehold for lives or years is renewed by a person having a limited
interest in it, the Court wQl not allow him to retain the benefit for himself exclu-
sively, and the remainderman must reimburse him : Nightingale v. Lawson,
1 Bro. C. C. 442 ; Bradford v. Brovmjohn, L. E. 3 Oh. 711.
There is no difference in principle between the apportionment of fines for re-
newal in leases for lives and leases for years : Jones v. Jones, 5 Hare, 440.
In the absence of express stipulation to the contrary the fines and expense of
renewal are to be borne by the tenant for life and remainderman in proportion to
their actual enjoyment of the estate, and not in proportion to an enjoyment to be
determined by a calculation of probabilities : Jones v. Jones, 5 Hare, 440; White
V. White, 9 Ves. 554; Bradford v. Brmvnjohn, L. E. 3 Oh. 711 ; Order, p. 158.
Compound interest is computed ou the proportion attributable to the remain-
derman up to the death of the tenant for life, and simple interest from that time
until payment : S. 0.
Contribution.
Sureties — Snit hy Surety.
It being admitted that the balance due from T, D. (the principal)
amounts to the sum of £3883 14«. 8d., Declare that the Pit Sir E. D.,
and the Defts the Earl of W. and Sir J. E., ought to contribute in
equal shares to the payment of that sum. Let the Pit Sir E. D., and
the Defts the Earl of W. and Sir J. E. respectively, pay the sum of
£1294 lis. 7d., being one-third of the said £3883 14«. 8d., in discharge
of the said sum. Upon payment let satisfaction be entered upon the
record, &c. Let the bonds be delivered up, &c. Bering v. Lord
WinchUsea, 1 Cox, 318. '
Sureties — Suit hy Executors of Surety.
Let an account be taken of all sums of money paid by W. the testa-
tor in the pleadings named and the Pits, his executors, or either of
them, pursuant to the undertaking in the pleadings mentioned. Let
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162 ACCOUNT.
interest be computed on such sums of money at the rate of £4 per cent,
per annum from the times the several payments were made. Tax the
Pits their costs of this suit. Let the Deft W. pay to the Pit one
moiety of what shall be certified to be due for principal and interest
as aforesaid, together with their costs of this suit when so taxed,
within, &c. Let the Deft W., within, &c., pay to the Pits the other
moiety of what shall be certified to be due for principal and interest
as aforesaid, and also pay to the Deft W. the principal and interest
hereinbefore directed to be paid by him to the Pits, together with the
costs of the said Deft Wi, to be taxed, &c., and also the costs which he
shall pay to the Pits under the directions hereinbefore contained.—
Liberty to apply. Lawson v. Wright, 1 Cox, 276 ; Seton, 662.
Sureties — Joint Liability — Deed to he cancelled.
Declare that the Pit is in equity discharged from all liability under
the indenture dated the 22nd July, 1849, in the Pit's bill mentioned,
the said indenture not having been executed by W. B. who is named
as one of the sureties in the said indenture. Let the said indenture
be, so far as the Pit is concerned, set aside and cancelled.^ — Defts to pay
Pit's costs of suit. — Liberty to apply. Evans v. Bremridge, 2 K. & J.
174.
Contribution.
If a tenant in tail in possession pays off an incumbrance it will ordinarily be
treated as extinguished, and the remainderman cannot be called upon for contri-
bution unless the tenant in tail has done some act which imports a positive
intention to hold himself as a creditor upon the estate : Story, 485.
But this doctrine does not apply to a tenant in tail in remainder, whose estate
may be altogether defeated by the birth of issue of another person. Nor, a fortiori,
to the case of a tenant for hfe paying off an incumbrance : Ibid.
"Where the tenant for life and remainderman join in a sale, the old rule was
that the tenant for life should be paid one-third and the remainderman two-thirds
of the purchase-money : Brent v. Best, 1 Vem. 69 ; Thynn v. Ikivall, 2 Vem.
117.
But the present rule is that each party's interest should be calculated according
to the tables respecting the probabilities of life.
So, too, in the discharge of incumbrances the proportion to be paid by the
tenant for life depends upon the value of his life, to be calculated by the tables ;
Wliite V. Wiite, 4 Ves. 33 ; 9 Ves. 554 ; Allan v. Buckhouse, 2 V. & B. 70, 79 ;
Jac. 631.
The tenant for life of an equity of redemption is bound to keep down the
interest of a mortgage debt : White v. White, 4 Ves. 24, 32. An adult tenant in
tail is not bound to do so ; Chaplin v. Chaplin, 3 Atk. 234.
But if the tenant in tail be an infant, the guardian or trustee is bound to keep
down the interest : Sergison v. Sealey, 2 Atk. 416 ; Amesburu v Brdum 1 Ves
479.
And where a mortgagee, having permitted the tenant for life to run in arrear
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ACCOUNT. 163
for interest, purchases the estate for life, and takes possession, he is hound to
apply the surplus rents and profits beyond the current interest in discharge of the
arrear : Penrhyn v. Eughes, 5 Ves. 99.
The doctrine of contribution amongst sureties is not founded in contract, but is
the result of general equity, on the ground of equality of burden and benefit :
Bering v. Lord Winchehea, 1 Cox, 318, n.
Therefore where three sureties are bound by different instruments, but for the
same principal and the same engagements, they are liable to contribute : S. C.
As a general rule the surety is entitled to the benefit of all the securities which
the creditor has against the principal.
Where, therefore, a bond is given by principal and surety, and at the sailie time
a mortgage is made for securing the debt, the surety if he pays the bond has a
right to stand in the place of the mortgagee : Oopin v. Middleton, T. & B. 224 ;
see also Hodgson v. Shaw, 3 My. & K. 183.
But the rule only applies to such securities as are subsisting securities when the
debt is paid. Therefore where two persons execute a bond, the one as principal
and the other as surety, and no other assurance is executed at the time, the surety
paying the bond debt extinguishes the debt, and ranks only as a simple contract
creditor of the principal : Copin v. Middleton, supra.
And an assignment of the bond executed to a trustee for the surety at the time
when the surety pays off the debt, will not keep alive the instrument so as to
to make the surety in equity a specialty creditor of his principal : Jones v.
Davids, i Euss. 277.
Where one of the sureties to a bond dies, his representatives may be made to
contribute his share to the surviving surety who has paid the debt : Primrose v.
Brmnley, 1 Atk. 88.
If the sureties are bound by different instruments for equal portions of a debt
due from the same principal, and the suretyship of each is a separate and distinct
transaction, there is no right of contribution between them : Coope r. Twynam,
Turn. & Buss. n.
Nor is there contribution in favour of one surety by another, where the engage-
ment is not as co-surety but as a distinct collateral security, limited to default of
payment by the principal and the other surety : Oraythorne v. Smnburne,
14 Ves. 160.
It has been said that the discharge of a surety by the creditor has not the effect
of a discharge of the principal without reserve, and therefore a co-surety is not
discharged : Ex parte Qifford, 6 Ves. 805. But this decision was overruled :
Nicholson v. Revill, 4 Ad. & E. 675 ; Evans v. Bremridge, 2 K. & J. 174.
The relief granted in equity to one of two sureties whose position has been
altered by the acts of the creditor, is to have the deed delivered up to be can-
celled : Underhill v. Horwood, 10 Ves. 225 ; Rice v. Gordon, 11 Beav. 265 ■
Evans v. Bremridge, 2 K. & J. 174 ; Order, p. 162.
Where a security on a bond to secure a money debt was secured by another
bond of indemnity entered into by the principal debtor's father, who died, the cre-
ditor having appUed to the surety, the surety was held entitled to maintain a bill
against the executors of the principal debtor, although the surety had made no
actual payment : Wooldridge v. Norris, L. B. 6 Eq. 410.
Although the giving up of a security is not in itself a release of the debt, yet
when it is given up with a clearly expressed intention of releasing the debt it may
amount to a release even at law : Taylor v. Manning, L E. 1 Ch. 48.
And notwithstanding the rule that where there is no release of a debt at law
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164 ACCOUNT.
there is none in equity, there may be considerations which would prevent the
debt from being enforced in equity, although subsisting at law : S. C.
A surety who has executed a bond on the faith of its being executed by the
principal debtor also, cannot be released from his obligation on the ground that the
principal has never executed it, if the principal has executed an instrument on
which the surety may sue him and become a specialty creditor of his : Cooper v.
Evans, L. B. 4 Bq. 45.
ACCODNT OF EeNTS AND PROFITS.
Courts of Equity when resorted to for the purpose of an account of mesne pro-
fits, will in many cases consult the principle of convenience, and will therefore
sometimes decree it where the party has not established his right at law : 1 Fonb.
Eq. ch. 3, s. 3.
And where a judgment creditor has had his execution levied upon the real
estate of the judgment debtor, an account of the rents and profits may be directed
in order to see whether the debt has been satisfied : Story, vol. i. 520 ; Yates v.
Hamlley, 2 Atk. 362 ; Owen v. Griffith, 1 Ves. 250.
So too, where a stranger enters upon the lands of an infant, and takes the rents,
he will be treated as a trustee or guardian for the infant, and compelled to account :
Newhurgh v. Bicherstaffe, 1 Vern. 295 ; Garey v. Biaiie, 2 Vem. 342 ; Bennet v.
Whitehead, 2 P. Wms. 644 ; Dormer v. Fortescue, 3 Atk. 129 ; Pulteney v.
Warren, 6 Ves. 88 ; Bdbertson v. Norris, 5 Jur. (N.S.) 1238.
To support a bill for an account in respect of waste the bill should have
prayed for an injunction as well as the accoimt required : Jesus Gollege v. Bloome,
3 Atk. 282 ; Bichards v. Nolle, 3 Mer. 673 ; see also OaHh v. Cotton, 3 Atk. 751.
And upon a bill for an account of mesne profits there must either have been
a difficulty in recovering possession at law, or fraud, or concealment : Pulteney v.
Warren, 6 Ves. 89 ; Bishop of Winchester v. Knight, 1 P. Wms. 406.
The lord of a manor may sue for an account of ore dug or timber cut against
the representations of a copyholder who has committed waste : Bishop of Win-
chester V. Knight, 1 P. Wms. 406.
And manorial rights are not confined to minerals. The lord of the manor has
against the tenants of the manor the right not only to coal but to everything under
the earth, whether it properly comes within the term " minerals " as used in the
direct sense, or in the general sense : Lord Basse v. Wainmain, 14 M. & W. 859 ;
S. C. on appeal, 2 Ex. 800.
But upon an exception by a vendor from a grant of lands in fee of " mines
and seams of coal, and other mines, metals, or minerals," a stratum of freestone
(freestone being worked by quarrying in the locality) was held not to be within
the exception : Bell v. Wilson, 11 Jur. (N.S.) 437 ; 12 Jur. (N.S.) 263.
Where there has been an adverse possession without fraud or concealment,
and upon an application to equity the pit appears entitled to an account of rents
and profits, the account will be taken only from the filing of the bill : Drummond
V. Dulce of St. Albans, 5 Ves. 433, 439.
The tenant for life of an estate is liable to account in equity for profits derived
by him from an improper use of his legal powers in committing equitable waste :
Morris v. Morris, 3 De G. & J. 323, 328.
But where a tenant for life without impeachment for waste pulled down the
mansion-house, building another, and using the old materials, and there being no
evidence of a sale or profit made by the old materials, an account against the
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ACCOUNT. 165
tenant for life was refused : S. C. But see Morris v. Morris, 15 Sim. 505 ; 11
Jur. 196 ; Buhe of Leeds v. Amherst, 2 Ph. 117 ; Micldethwaite v. Micklethwaife,
1 De G. & J. 504.
Tithes.
An account of tithes is consequential upon the legal right. Therefore, where
the evidence throws doubt upon that right, the account wiE not be directed
till the right is established at law : Foxcroft v. Parris, 5 Ves. 221 ; Waterford
V. Knight, 9 Jur. 335.
If there has been an adverse retainer of tithes, and the production of old in-
struments lends a colour to the title, although the grant itself is not produced,
the Court will not interfere even on behalf of a spiritual rector without he
prove his title at law : Fanshaw v. JRotheram, 1 Eden, 276 ; Hughes v. Davies,
5 Sim. 331, 350 ; Waterford v. Knight, supra.
But mere non-payment and retainer alone are not sufficient evidence to induce
a Court to presume that such a grant existed : Strutt v. Baker, 2 Ves. 625 ;
Berney v. Harvey, 17 Ves. 119 ; Meade v. Norbury, 2 Price, 338 ; 8. C. on
appeal, 3 Bli. 211!
Evidenqp which is sufficient to imply a grant as against the pit as lay rector
.will be sufficient to imply it as against a pit who is spiritual rector : 1 S. & S.
415, 418.
Modus.
A bill to establish a customary payment in lieu of tithes could not be main-
tained where the deft has not sought to enforce his right to tithes by suit or
action : Lord Coventry v. Burslem, 2 Aust. 567 ; Gordon v. Simpkinson, 2 Ves.
508.
The pit in such a case is not entitled to discovery unless he is entitled to relief :
Gordon v. Simpkinson, sv/pra.
To a bill to establish a customary payment in lieu of tithes the ordinary must
have been a party : S. C.
Customary payment in lieu of tithes need not be immemorial. But the defence
to a bill for tithes was not sufficient if it merely proved that a less sum than that
claimed by the pit is due.' A certain less sum must be established : Warden,
&c. of St. Paul's V. Morris, 9 Ves. 155 ; 14 Ves. 607.
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CHAPTER XX.
PAETNEESHIP.
Inquiry as to Existence.
Let an inquiry be made whetlier or not there was any and what
partnership between Gr. deceased in the pleadings named and the Deft,
and if so when the same commenced, and whether the same ever and
when determined, and under what circumstances. — Adjourn further
considera,tion. Maynes v. Maynes, 1860, A. 2187 ; Seton, 541.
Sale — Inquiry if beneficial, and as to Mode.
Let an inquiry be made whether it will be for the benefit of all
parties concerned in the works situate, &c., that the same should be
sold, and in what manner, as going works, or that they should be
parried on for the purpose merely of winding up the concern. Graw-
shay V. Maule, 1 Sw. 529, jper Lord Eldon.
Dissolution — Inquiry if beneficial to Infants.
The Defts the executors, by their counsel, declining to carry on the
testator's business in the pleadings mentioned. Let an inquiry be made
whether it will be for the benefit of the Pits the infants that the
terms offered by the Deft S. for dissolving the partnership in the
pleadings mentioned should be accepted, or that such partnership
should be dissolved on any and what other terms. ^Bolme v. Snout,
1827, A. 2067 ; Seton, 656.
Insanity — Recovery alleged — Inquiry.
Let an inquiry be made whether the Deft Bennet is in such a state
of mind as to be able to conduct the business in partnership with the
Pit according to the articles of partnership, and how long he has been
BO. Sayer v. Bennet, 1 Cox, 107.
Bankruptcy — Inquiry as to Profits made subsequently.
Let an inquiry be made whether there were any and what profits
made since the — day of — [the date of bankruptoyj by any or what
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PARTNERSHIP. 167
Tise or application of or by means of the stock-in-trade and capital of
the partnership business. Liberty to state specially any circnmstanees
relative to the stock and capital existing on the — day of — , or as to
any profits made since, or as to any contract with Government, or as
to the patents, or any profits made from such contracts or by the use
of the said patents. Crawshay v. Collins, 16 Ves. 230 ; Featherstonhaugh,
V. F&nwick, 17 Ves. 298, 314.
Decree for Accouitt.
Common Form.
Let an account be taken of all partnership dealings and transactions
between the Pit and Deft from the — day of — . Let what on taking
the said account shall be certified to be due from either of the said
parties to the other of them be paid within one month from the date
of the chief clerk's certificate by the party frord whom td the party
to whom the same shall be certified to be due. — -Liberty to apply.
Decree for Dissolution — Account.
Declaee that the partnership between the Pit and Deft in the
pleadings mentioned ought to be dissolved as from the — day of — , and
decree the same accordingly. Let the following accounts be taken : —
1 . An account of all partnership dealings and transactions between
the Pit and Deft from the — day of — .
2. An account of the credits, property, and efiects now belonging to
the said partnership. Any settled account not to be disturbed.
— Further consideration adjourned. — Liberty to apply.
Sale — Beceiver — Special Accounts.
Declare that the co-partnership property and effects in the plead-
ings mentioned ought to be sold, and Let the same be sold accordingly
with the approbation of the judge. Let the money to arise by such
sale be paid into Court to the credit of, &c. Let, in the meantime and
until such sale be had, the Deft Greenwood be appointed [upon first
giving security] receiver and manager of the co-partnership property
and efiects, and take and have the superintendence and carrying on of
the said co-partnership trade, and get in the outstanding debts and
efiects belonging to the said co-partnership, and be allowed aU. his
just and reasonable costs, charges, and expenses in and about the
same, but without any salary. Let an account be taken of the co-
partnership dealings and transactions; and in taking such account
the capital which each of the partners had in the trade at the time of
the bankruptcy of William EUis, and which of the co-partnership
debts have been since paid, and by whom, and out of what fund,
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168 PARTNERSHIP.
without prejudice to any question between the parties, and with
liberty for either party to apply specially as to the same. Let the Pit
and the Deft "Whitaker deliver over to the Deft Greenwood all the
stock, goods, effects, books, and accounts belonging to the said co-
partnership. Deft Greenwood to be at liberty to bring actions, &c.,
and to be indemnified, &c. Balances to be paid into Court. Wilson v.
Greenwood, 1 Sw. 471, 483.
f
Partnership in Ships — General Accounts.
Let an account be taken of all dealings and transactions between
the Pit and Deft relating to the ship — and the cargo on board the
same, and of all sums of money received and paid by the Pit or Deft,
or either of them, on account thereof. Settled accounts not to be
disturbed. — Further consideration adjourned. Strong v. McGlasson
(V.-C. K.), June 12, 1857 ; Seton, 559.
Account of Freight and Profits.
An account of all sums of money which have arisen from the freight
of the ship — , and the profits made by the said ship or otherwise on
account of the said ship during her voyage to — , and of the several
sums of money received by — or by any other person or persons on
account of such freight and profits. Harrington v. Dale, 1806, A. 868 ;
Seton, 560.
Inquiries as to Sales.
An inquiry whether any and what sale or sales has or have been at
any time or times, and when, made of the said ship, or any and what
part or parts thereof, and to whom and by whom and for what price
or prices respectively.
An inquiry whether such sale or sales was or were a fair sale or
sales, and if not what was the value of the said ship, and a fair and
reasonable price to be given for the purchase thereof at the time of
such sale or sales. Gox v. Ghubh, 1771, A. 430 ;. Seton, 559.
Inquiry as to Commission.
An inquiry whether according to the custom or usage of trade, as
between shipowners or otherwise, the Pit and his late partner, as
managing owners of the said ship, were entitled to be paid any and
what commission in respect of duties performed by them with respect
to the voyages of the said ship. Smith v. Lays, 3 K. & J. 105 ; Seton,
560.
Deceased Partner — Accounts.
Leu an account be taken of all partnership dealings and transac-
tions between .1. W. deceased, the testator, and the Defts. Let what
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PARTNERSHIP. 169
on taking the said account shall appear to he due from the Defts be
answered by them personally, and what shall" appear to be due from
the testator be answered by the Pits as the executors of his will out
of his assets. And in case the Pits shall not admit assets of the
testator come to their hands, Let an account be taken of the per-
sonal estate of the said testator come to the hands of the Pits or either
of them, or to the hands of any other person or persons by their or
either of their order or use. Settled accounts not to be disturbed. —
Further consideration adjourned.
Similar Order — Special Accounts.
Declare that the partnership between the testator F. and the
Deft M. was dissolved by the death of the said F. on the — day of — .
Let the following accounts be taken : —
1. An account of the partnership dealings and transactions between
the testator and the Deft.
2. An account of the credits, property, and effects of the partnership
at the testator's death.
3. An account of the partnership debts and liabilities at the time of
the testator's death.
4. An inquiry what has since become of the partnership property,
and whether any and if any what parts thereof remain in specie or
outstanding and undisposed of.
5. An inquiry whether any and which of the partnership debts and
liabilities have been since paid or satisfied, and by whom and out of
what fund.
Let such of the partnership property and effects as shall remain in
specie be sold with the approbation of the judge, and the money to
arise by such sale paid into Court to the credit, &c. — Adjourn further
consideration. Sirtzel v. Mules, 1858, A. 1857 ; Seton, 548.
Deceased Partner — Accounts and Inquiries— Sale as going Concern —
Liberty to hid — Allowances.
Let the following accounts and inquiries be taken and made : —
1. An account of all dealings and transactions between J. deceased,
the testator in the pleadings named, and the Deft up to the death of
the testator in respect of the partnership, &o., any settled account not
to be disturbed. 2. An account of the receipts and payments, deal-
ings, and transactions of the Deft in respect of the said partnership
subsequent to the testator's death. 3. An inquiry what sums have
been paid by the Deft to the Pits as the executors of the testator in
respect of the said business or the testator's capital therein since the
testator's death. 4. An inquiry what amount of capital the Pits, as
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170 PARTNBESHIP.
such executors and the Deft respectively, had at the testator's death,
and have since from time to time continued to have in the said
business. 5. An account of the profits of the said business since the
testator's death. 6. An inquiry whether the Pits, as executors of
the testator, are subject to any and what liability in respect of any
covenants or agreements contained in any lease or leases of the pre-
mises in the pleadings • mentioned, on which the said business was
carried on, and whether any and what provisions ought to be made
for the indemnity of the Pits in respect of such liability. 7. An
account of the leasehold property, stock-in-trade, tools, fixtures,
and other property and effects belonging to the said partnership at
the death of the testator, and of what the same now consist.
Let the said business and leasehold property, stock-in-trade, tools,
fixtures, and other property and effects belonging to the said business
and the goodwill thereof be sold as a going concern. And any of the
parties to this cause (except the party having the conduct of such
sale) are to be liberty to bid and become a purchaser or purchasers at
such sale.
And in taking the said accounts the Deft is to be at liberty to sub-
mit any claims as just allowances which he may be advised ought to
be made to him by reason or on account of his services in managing,
transacting, and carrying on the said business since the death of the
testator. — Further consideration adjourned. MaOieio v. Jenncms, 1859,
B. 386 ; Seton, 552.
Deceased Partners — Separate Estate made liable after Payment of Separate
Detts to Partnership Debts.
Declare that the surplus of the [separate] estate of the testator A.,
after satisfying his funeral and testamentary expenses and his sepa-
rate debts, was liable in equity at the time of his death to the joint
debts then due from the testator and B. the surviving partner in
respect of the partnership heretofore carried on by them under the
firm of P. & Co. But this order is without prejudice to the liability
of the said B. [the survivor] to the said joint debts as between himself
and the said testator's estate.
Let the following accounts be taken : —
1. An account of what was due to testator's separate creditors.
2. An account of funeral expenses.
3. An account of what was due at the death of the testator from the
said partnership of P. & Co. to the creditors of the said partnership,
and what is now due in respect of such debts.
4. and 5. Inquiries as to testator's leasehold and personal estate.
Let the testator's personal estate be applied in payment of his
separate debts and funeral expenses in a due course of administration.
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PARTNEESHIP. , 171
and then in payment of the joint debts of the pai-tnership. If per-
sonalty iDsiifficient, inquiry as to realty. Mills v. McBae, 9 Hare,
297.
PartnersMp Agreement — Capitals of Partners — Division of Assets —
Inquiries.
Declare that according to the true construction of the articles of
partnership in the pleadings mentioned the assets were applicahle
and ought to he applied first in payment of all debts due and owing
by the partnership other than to the partners themselves, and that
subject to the payment of the said debts the assets were applicable
and ought to be applied in payment to each or either of the partners
of any sums which he, with the consent of the other of them, has
lent or brought into the joint stock trade (not being accumulation
of profits) beyond the amount of capital by the said articles agreed
to be brought in, together with interest in respect thereof after the
rate of £5 per cent, per annum.
Declare that after payment of all the debts due and owing by the said
partnership other than to the partners themselves, and after the pay-
ment of all such sums as have been so lent or brought into the
co-partnership as have not since been repaid, together with such
interest thereon respectively as aforesaid, the surplus assets of the said
partnership ought to be divided rateably between the Pit and the said
Deft according to the amounts of their respective capitals in the said
partnership at the date of the dissolution thereof on the 25th De-
cember, 1862.
Let an inquiry be made whether both or either and which of the
partners did with the consent of the other of them lend or bring into
the said joint stock trade in aid of the capital thereof any, and if
any what, sum or sums of money, and whether any and what sum or
sums has or have been and when retained by or repaid to the said
partners respectively, or either and which of them, in respect of such
moneys so lent or brought in as aforesaid, and what (if anything) is
now due to the said partners, or either or which of them, in respect of
the said moneys, having regard to the declarations aforesaid. And the
Deft admitting that the sum of £1137 16s. 4d. in the chief clerk's
certificate mentioned forms part of the partnership assets, Let the
Deft account for the same as part of such assets accordingly. Let the
£437 16«. 2d. Bank £3 per cent. Annuities^ on the credit of the
cause Wood v. Scales, and the £12 18«. 4d. cash on the like credit, and
any interest to accrue on the said Bank Annuities, be transferred and
paid to the Deft Scoles, he undertaking to account for the same as
part of the partnership assets. Let the said Deft retain the sum of
£60 and interest in the articles of dissolution mentioned. Eetnrn
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172 PARTNBESHIP.
appeal deposit. — Further consideration adjourned, to be heard before the
Lord Justice S. — Liberty to apply. Wood v. Scales, L. E. 1 Ch. 369.
Division of Assets — Capital of Partners.
Deolaee that interest ought not t^j be allowed upon the amounts of
capital of the partners on the 20th June, 1861 [date of decree for
dissolution]. Let an inquiry be made how much of the £40,394 H«. lid.
Bank £3 per cent. Annuities remaining on the credit of the cause of
Watney v. Wells is required to pay up the capitals' of the Pit and Deft
respectively, and how much of the said Bank Annuities and of
£595 6«. 5d. cash on the credit of the said cause is the result of accu-
mulations from dividends upon so much of the said Bank Annuities
as will represent the capitals of the Pit and Deft respectively ; and
the residue (if any) which will remain of thesaid Bank Annuities
and cash after appropriating the said capital and accimiulations is to be
certified and divided into moieties. AfBrm the declaration of the
Master of the Eolls that the Pit and Deft are entitled respectively to
so much of the said Bank Annuities as consists of interest and accu-
mulations from the investment of their respective capitals. Declare
that if after fully paying the capital of the parties respectively, and
apportioning the accumulation, to the capital producing them, there
shall be any surplus of the said Bank Annuities and cash, such surplus
is to be divided between the Pit and Deft equally. — Adjourn further
consideration. — Liberty to apply.^ Watney v. Wells, L. E. 2 Ch. 250, 254.
Deceased Partner — Survivors Bankrupt — Accounts — Suit by Creditor.
Accounts and inquiries in respect of the estates of testators John
Devaynes and William Devaynes, and Let the following accounts be
also taken : —
1. An account of what was due at the time of the death of William
Devaynes, deceased, from the partnership of William Devaynes, de-
ceased, J. Dawes, W. Noble, E. H. Croft, and E. Barwick, to the Pit
Sir Thoriias Baring, as executor of J. Wigglesworth, and to Sir Fre-
derick Standish respectively, and also what was due to all such other
persons as were creditors of the said partnership at the time of the
death of the said testator William Devaynes. 2. An account of what
is now due from the said partnership to the Pit Sir Thomas Baring
as such executor and to the said Sir P. Standish respectively, and to
all such other persons as were creditors of the said partnership at the
time of the death of the said William Devaynes. Directions to com-
pute interest on debts carrying interest. 3. An inquiry whether the
said Pits and creditors or any and which of them continued to deal
with the said John Dawes, William Noble, E. H. Croft, and E. Bur-
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PAETNEESHIP. 173
wict after the death of the said William Devaynes. 4. An inquiry
what sum or sums of money was or were paid by the said surviving
partners to the said Plaintiffs and creditors respectively from the
death of D. to the bankruptcy of the said surviving partners, and
what has been since received by the said Pits and creditors re-
spectively. 5. An inquiry whether the said Pits and creditors or any
and which of them have by such subsequent dealing released the
estate of the said William Devaynes from the payment of their re-
spective debts, or what, if anything, remains due in respect thereof. —
Further consideration adjourned. Devaynes v. Noble, 1 Mer. 530.
Dissolution of Partnership — Return of Premium.
Let that part of the decree dated 8th December, 1866, which directs
that so much of the Pit's bill as seeks a return of the premium therein
mentioned should stand dismissed out of this Court without costs be
reversed. And instead thereof Declare that the Pit is entitled to a
return of the £556 being such a part of the £800 in the pleadings
mentioned as bears the same proportion to the said £800 which the
period of time between the 16th February, 1866, and the 1st January,
1871, being the day on which the term of seven years in the agree-
ment in the Pit's bill mentioned would have expired, bears to the
whole term of seven years. Let the £20 appeal deposit be repaid,
&o. Alwood V. Maude (L.JJ.), March 11, 1868.
Partners to he credited with Interest on Sums advanced — To he debited with
Interest on Sums drawn — Mests.
Let in taking the accounts under the decree dated, &c., the Pit and
and Deft respectively, and in respect of the period antecedent to the
dissolution of partnership, be credited with interest at the rate of £5
per cent, per annum on all sums from time to time during that period
advanced by them respectively on account of their respective shares of
the capital required for carrying on the partnership business, or ad-
vanced or lent to or left in the co-partnership by either of them with
the consent of the other of them. Let them in like manner be debited
with interest at the same rate on all sums from time to time during
the same period drawn by them respectively out of the said partner-
ship for their own respective use ; such accounts in respect of the
period aforesaid being taken with annual rests according to the course
and usage of the said co-partnership on the 26th December in every
year subsequent to the date of the last settled account, and a final rest
being made on the 11th December, 1867, the day of the dissolution of
the said partnership. Direct that from and after the 1 1th December,
1867, the Pit and Deft respectively are to be credited with simple
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174 PARTNERSHIP.
interest on the balances due to them respectively from the partner-
ship on the day of the dissolution, or on so much of the said balances
as may not from time to time have been afterwards satisfied by moneys
received and retained by them or either of them to their own respec-
tive use out of the partnership assets at the rate of £5 per cent, per
annum, without annual rests, Barfield v. LougJiborough, L. E. 8 Ch. 1.
Paetneeship.
The Court will decree specific performance of a contract to enter into a partner-
ship for a specific term of time, and to furnish a share of the capital stock :
Orawshay v. Maule, 1 Sw. 511, and note.
And will in like manner enforce other agreements made in the partnership
articles : Story, 10th 'ed. vol. i. p. 659 ; Somerville v. MacJcay, 16 Ves. 382 ;
Lingen v. Simpson, 1 S. & S. 600.
In most cases a Court of Equity will not decree partnership accounts unless
there has been a dissolution, or a dissolution is prayed : Forman v. Homfray,
2 v. & B. 329, per Lord Eldon ; Russell v. Luscomhe, 4 Sim. 8. But see also
HaYrison v. Armitage, 4 Mad. 143 ; Walworth v. Edit, 4 My. & Cr. 619 ; Shep-
pwrd V. Oxenford, 1 K. & J. 491.
Where the dissolution has taken place an account will not only be decreed, but
if necessary a manager or receiver appointed to close the partnership business and
sell : Story, 10th ed. vol. i. p. 663 ; Orawshay v. Maule, 1 Sw. 506, 523 ; Peacock
Y. Peacock, 16 Ves. 57 ; Featherstonhaugh v. Femoick, 17 Ves. 298 ; Wilson v.
Oreenwood, 1 Sw. 471.
Where a suit is instituted for the dissolution of a partnership, and all or some
of the parties have a right to dissolution, a sale may be ordered upon an interlo-
cutory motion : Orawshay v. Maule, 1 Sw. 506, 523.
Where no term is expressed or implied for the duration of a partnership the
partnership may be terminated immSdiately by either party without previous
notice subject to account: Orawshay v. Maule, 1 Sw. 508, 522; Peacock v. Pea-
cock, 16 Ves. 49, 57 ; Featherstonhaugh v. Fenwick, 17 Ves. 300.
But the Court will interpose by injunction to restrain a sudden dissolution when
such dissolution would he injurious : Ohavany v. Van Sommer, 1 Sw. 512, note.
Although a partnership be entered into for a term of years, it is previously dis-
solved by the death of either of the partners unless there he express stipulations
to the contrary : Orawford v. Hamilton, 3 Madd. 251 ; Orawshay v. Maule,
1 Sw. 508.
And the purchase of a leasehold interest of a longer or shorter duration than
the partnership term is not a circumstance from which it is to be inferred that the
partnership is to continue as long as the lease : Orawshay v. Maule, supra.
When a partnership is dissolved by the bankruptcy of one partner the assignees
are entitled beyond an account and distribution of stock, &c., to a participation
of subsequent profits made by the other partners trading with the capital as con-
stituted at the time of bankruptcy : Orawshay v. Oollins, 15 Ves. 218.
The consequence of a dissolution of pai-tnership where there are no articles pre-
scribing the terms is a general sale and account of the joint property : Featherston-
haugh V. Fenwick, 17 Ves. 298.
One or more partners cannot upon dissolution of the partnership insist on taking
the share of another at a valuation : S. C.
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PARTNERSHIP. 175
Equity has jurisdiction to decree a, dissolution of partnership hefore the natural
expiration of the term.
Such a dissolution may be ordered upon the ground that the partnership cannot
be carried on according to the true meaning of the articles of partnership : Baring
V. Dix, 1 Cox, 213 ; or, owing to the conduct of the parties : Waters v. Taylor,
2 V. & B. 299 ; Harrison v. Tennant, 21 Beav. 482.
Dissolution of partnership may also be ordered upon the ground of insanity of
one of the partners : Anon., 2 K. & J. 441 ; Waters v. Taylor, 2 V. & B. 303 ;
Sayer v. Bennet, 1 Cox, 107 ; Pearce v. Chamberlain, 2 Ves. 34 ; Besch v.
Frolioh, 1 Ph. 174.
So, too, in the case of gross misconduct in one of the partners : EsseU v. Hay-
ward, 6 Jur. (N.S.) 690.
But upon a bill to dissolve a partnership upon the ground of insanity, the Court '
will not make its decree retrospective, even to the filing of the bill : Besch v.
Frolich, 1 Ph. 174.
The distinction between joint and separate assets applies to the administration
of the assets of a deceased partner as well as to administration under bankrupt-
cies : Ridgway v. Clare, 19 Beav. 111.
The creditors of the partnership are entitled to be first paid out of the joint or
partnership estate, and the separate creditors to be first paid out of the separate
estate of each partner. If surplus of the separate estate of either partner after
paying the separate debts, such surplus is applied towards the debts of the part-
nership, and vice versa : Twiss v. Massey, 1 Atk. 67 ; Ex parte Cook, 2 P. Wms.
500 ; Hx parte Elton, 3 Ves. 240 ; Ex parte Clay, 6 Ves. 833 ; Campbell v. Mullett,
2 Sw. 574 ; Gray v. Chiswell, 9 Ves. 118 ; Hutton v. Morrison, 17 Ves. 205.
In the administration of the assets of a deceased partner where both partners
are solvent, there is no distinction between joint and several creditors. They are
all paid, and in taking the partnership accounts the joint debts thus paid will be
allowed in account by the surviving partner : Ridgway v. Cla/re, 19 Beav. 111.
If one of the partners dies and the survivor becomes bankrupt, the joint estate
is administered in payment of the joint creditors, who until paid in fuU have a
claim upon the separate estates after payment of the separate debts : Cowell v.
Syhes, 2 Russ. 191 ; Campbell v. Mullett^ 2 Sw. 574 ; Ex parte Ruffin, 6 Ves.
125; Ex parte Kendall, 17 Ves. 514; Oray v. Chigwell, 9 Ves. 118.
And if there bd no bankruptcy the creditors of the partnership may resort at
once to the assets of the deceased partner, leaving his executors to their remedy
against the surviving partner : Devaynes v. Noble, 2 Russ. & My. 495 ; see order,
p. 173 ; Wilkinson v. Henderson, 1 My. & K. 582 ; Thorpe v. Jackson, 2 T. & C.
553 ; SleecKs Case, 1 Mer. 539.
Land purchased during the partnership with partnership assets and for partner-
ship purposes is considered as personal estate as between the heir-at-law and per-
sonal representative of a deceased partner : Crawshajy v. Maule, 1 Sw. 508 ;
Phillips V. Phillips, 1 My. & K. 649 ; Da/rbey v. Darbey, 3 Dr. 495 ; Eolroyd
V. Hoh-oyd, 7 W. R. 426.
Where the partnership articles contained a provision that sums brought in by
either partner in addition to the original capital should bear interest payable
before other interest, and that on dissolution the capital, stock, &c., should be
divided between the partners according to their shares, it was held that the assets
after payment of debts ought to be first applied in repaying to the deft with
interest the additional capital brought in by him in cash : Wood v. Scales, L. R.
1 Ch. 369 ; Order, p. 171.
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178 PARTISTERSHIP.
Where after a decree had heen made for the dissolution of a partnership, and
for the sale of the property, the business was continued until sale, it was held
that the interest by the partnership articles agreed to be paid to each partner was
no longer payable, and that in the division of the proceeds of sale each partner
would take what was found to be his share of capital at the time of dissolution :
Watney v. Wells, L. E. 2 Ch. 250 ; Order, p. 172.
Where a parol agreement has been entered into between partners that profits
should be shared and losses borne in equal shares, although the advances of
capital made by the partners be unequal, any deficiency in the assets must be
borne equally : Nowell v. Nowell, L. E. 7 Eq. 538.
In the absence of express or implied stipulation to the contrary partners con-
tribute equally to every loss, whether that loss is a loss of the original capital
brought in, or any other loss : S. 0.
In the absence of fraud or gross misconduct equity will not allow one partner
receiving a premium from the other to keep the whole of it if the partnership is
prematurely dissolved : Bury v. Allen, 1 OoU. 589 ; Astle v. Wright, 23 Beav.
77 ; Atwood v. Maude, L. E. 3 Oh. 369, and cases there cited ; see Order,
p. 173.
Unless there be an express stipulation, or a particular course of practice shewn
by the partnership books to the contrary, no interest is chargeable by one partner
against a co-partner: Sill v. King, 9 Jur. (N.S.) 527; BisMon v. Grissell,L. E.
5 Bq. 326.
In taking partnership accounts under a decree the profit and loss account in
every year is properly charged with sums representing the depreciation arising
from the running out of the lease and the waste of plant and machinery : Bishfon
V. Grissell, supra.
Profits derived from the trade carried on after the death of the testator depend
upon the nature of the trade, the manner of carrying it on, the capital employed,
the state of the account between the partnership and the deceased partner at the
time of his death, and the conduct of the parties after his death : Willeft v
Blandford, 1 Hare, 253, ^jer V.-C. Wigram.
And where after the death of a partner the surviving partners admitted into
the firm his son, who was the executor, but not admitted as such, the business
being continued without separation of the partnership assets, the executor was
held not to be liable to the testator's estate for the profits received as a partner in
the bank : Simpson v. Chapman, 4 De G. M. & G. 153.
For classification of the cases.in which the estate of a deceased partner is entitled
to participate in the subsequent profits of a trade in which his capital has been
employed, see Wedderburn v. Wedderlurn, 22 Beav. 84.
MORTSAGE TO SECURE PARTNERSHIP DeBTS.
For cases where mortgages of partnership property to secure separate debts of
the partners have been held to be fraudulent as against the general creditors of
the partnership, see Ex parte Snowball, L. R. 7 Ch. 534.
Interest ok Capital after Dissolution.
In taking the accounts of a partnership, interest after the dissolution will not
in general be allowed to the partners on their respective capitals, though interest
during the partnership with annual rests is allowed : Barfield v. Loughborough,
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PARTNEESHIP. 177
L. E. 8 Ch. 1. See also Wood v. Scales, L. B. 1 Oh. 369; Watney v. Wells,
L. E. 2 Oh. 250.
But the rule may be varied by the terms of the articles, as, for example by
a provision treating the capital left in by a partner as an interest-bearing loan :
Barfield v. Loughborough, L. E. 8 Ch. 1.
Any sum of money received after the dissolution and retained by either partner
ought to be debited to him, and' applied first in reduction of the interest due to
him, and then in reduction of h^s capital ; S. C,
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( 178 )
CHAPTER XXT.
ADMINISTRATION.
Will established.
Declare that the will of — , the testator [is well proved, and that
the same] ought to be established, and the trusts thereof performed
and carried into execution.
If will admitted : The Deft B., the heir-at-law of — , the testator, &c.,
by his defence [counsel] admitting the due execution of the testator's
will dated, &c., this Court doth declare, &c.
Infant heir not asking issue : And counsel for the infant Deft B. not
asking for an issue upon the will of the testator, and the Court being
of opinion that it will not be for the benefit of the said infant to direct
such issue, Declare, &o.
If will proves itself: Upon reading the will of the testator — , dated
&c.. Declare that the same ought to be established, &c.
Creditor's Action — Personal Estate — General Accounts.
Let the following accounts and inquiry be taken and made, that is to
say : — 1. An account of what is due to the Pit and all other the cre-
ditors of A. deceased, the intestate [or, testator] in the Pit's action
named. 2. An account of the intestate's [or, testator's] funeral ex-
penses. 3. An account of the intestate's [or, testator's] personal estate
come to the hands of the Defts — , the administrators of his estate [or,
executors of his will], or of any or either of them, or to the hands of
any other person or persons by their or any or either of their order or
use. 4. An inquiry what parts (if any) of the intestate's [or, testator's]
personal estate are outstanding or undisposed of. Let the intestate's
[or, testator's] personal estate be applied in payment of his debts and
funeral expenses in a due course of administration. — Adjourn further
consideration. — Liberty to apply.
Creditor's Action — Beal and Personal Estates — General Accounts.
Let the following accounts and inquiries be taken and made : — An
account of what is due and owing, &c., and accounts of personal estate
see order, supra']. Let the intestate's [or, testator's] personal estate be
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ADMINISTEATION. 179
applied in payment of the debts and funeral expenses in a due course
of administration. And in case the intestate's [or, testator's] personal
estate shall be insufficient for payment of his debts and funeral
expenses, Let the following further inquiries and accounts be made
and taken. An inquiry what real estate the intestate [or, testator]
was seised of or entitled to at the time of his death. An inquiry
what incumbrances (if any) affect the intestate's [or, testator's] real
estate, or any or what part thereof [and their priorities]. An account
of what is due to such of the incumbrancers (if any) as shall consent
to the sale hereinafter directed in respect of their incumbrances. Let
the intestate's [or, testator's] real estate, or a sufficient part thereof to
make good the deficiency of his personal estate, be sold with the ap-
probation of the judge, free from the incumbrances (if any) of such of
the incumbrancers as shall consent to the sale and subject to the
incumbrances of such of them as shall not consent. Let the money to
arise by the sale of such real estate be paid into Court to the credit,
&c. ; And if such money or any part thereof shall arise from real
estate sold with the consent of the incumbrancers the same is to be
applied in the first place in payment of what shall appear to be due to
such incumbrancers according to their priorities. — Adjourn further
consideration. — Liberty to apply.
Creditor's Action — Beal and Personal Estate — Inquiry as to Heir.
Let the following accounts and inquiries be taken and made : — An
account of what is due and owing, &c., and accounts of personal estate,
as in first order. — Let the intestate's personal estate be applied, &c.
Let the following further inquiries and accounts be made and taken :
An inquiry who at the time of the death of the said intestate was his
heir-at-law, and whether such heir is living or dead, and if dead who,
by devise, descent, or otherwise, is now entitled to such real estate (if
any) of the intestate as descended to such heir-at-law. — Inquiries as to
real estate, rents, and profits, and incumbrances, as in preceding order,
— And if it shall appear that the heir-at-law of the said intestate or the
representative as aforesaid of such heir-at-law is a party to this suit.
Let the intestate's real estate, or a sufficient part thereof to make good
any deficiency, be sold, &c. — Usual directions. Pickering v. Backhouse,
(V. C. B.), Feb. 17, 1873; see also CJiathamv. Higginbottom (V.-C.W.),
Feb. 11, i860.
Creditor's Action for General Account — Personalty — Payment of
Pit's JDeht.
The Deft B., the executor [or, administrator] of A., the petitioner
[or, intestate], by his defence [or, counsel or solicitor] admitting assets
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180 ADMINISTRATION.
of the said A. for the purposes of this suit, and that the said A. was
at the time of his death indebted to the Plh in' the sum of £ — , and
that the sum of £ — is now due for principal and interest in respect
of such debt; Let the Deft B. (within one month from, the date of
this order) pay to the Pit C. the said sum of £ — , with subsequent
interest on the principal sum of £ — , part of the said £ — at the rate
of £— per cent, per annum from the — day of — to the day of pay-
ment.— Liberty to apply. See Woodgate v. Field, 2 Hare, 211.
Creditor's Action for Pit's Debt alone— Personalty — Payment.
Let the following accounts be taken : — An account of what is due to
the Pit for principal and interest, &c., and for his costs of suit [such
costs to be taxed, &c.]. An account of the testator's personal estate
&c. Let what shall be certified to be due to the Pit for principal
and interest and costs be paid to him out of the personal estate of the
testator in a course of administration. — Adjourn further consideration,
&c. Seton, 136; Attorney-General v. Courthwaite, 2 Cox, 44; Perry y.
Phelips, 10 Yes. 38.
Action by Creditor or Mortgagee — Sale — Administration of Meal and
Personal Estate in case of Deficiency.
Let an account be taken of what is due to the Pit for principal and
interest upon his mortgage security in the Pit's bill mentioned, and for
his costs of this suit, to be taxed, &c. Let the hereditaments comprised
in the Pit's mortgage security be sold with the approbation of the
judge. And Let the money to arise by such sale be applied in pay-
ment of what shall be certified to be due to the Pit, and in the mean-
time be paid into Court to the credit of, &c. Declare that in case the
money to arise by such sale shall be insufficient to pay the amount
due to the Pit, he is entitled to receive satisfaction for the deficiency
out of the assets of D., the testator, in a due course of administration.
Let the following further accounts and inquiries be taken and made :
An account of what is due to all other the creditors of the testator.
An account of the funeral expenses of the testator. An account of the
personal estate come to the hands, &c. An inquiry what personal
estate is outstanding, &c. Let the testator's personal estate be applied
in payment of his debts and funeral expenses in a due course of
administration. And in case the testator's personal estate shall not be
sufficient for the payment of his debts and funeral expenses. Let the
following further inquiries be made; that is to say : An inquiry what
real estate the testator was seised of at the time of his death other than
the hereditaments comprised in the Pit's mortgage ; An inquiry what
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ADMIN ISTEATION. 181.
incumbrances affect the testator's real estate and their priorities. —
Adjourn further consideration. Austin v. Phelips, 1854, A. 967 ; Seton,
289.
Action hy Creditor, an Equitable Mortgagee — Administration of Real and
Personal Estate in case of Deficiency.
Declare that the Pit, as the public registered officer of the banking
company in the pleadings mentioned, is entitled to an equitable mort-
gage by deposit of title deeds of, &o. Let the following accounts be
taken : — An account of what is due to the Pit as such officer of the
said banking company and to all other creditors of the testator. — Usual
directions in creditors' decree as to personal estate. — Inquiry as to
incumbrances upon realty (other than the charge hereby decreed),
their priorities, and the amount due. — Declaration that the realty was
liable to make good the personalty. — Adjourn further consideration.
Billson V. Owen, 1861, A. 986 ; Seton, 290.
Action hy Next of Kin — Personalty.
Let the following inquiries and accounts be made and taken : —
1. An inquiry who were the next of kin according to the statutes
for the distribution of intestates' estates of A. deceased, the intestate
in the pleadings [or summons] named living at the time of his death,
and whether any of them are since dead, and if dead who are their
respective legal personal representatives. 2. An account of the per-
sonal estate of the said intestate come to the hands of the Defts — , the
administrators of his estate, or any [or either] of them, or to the hands
of any other person or persons by or for the order or use of the Defts
or any or either of them. 3. An account of the intestate's debts.
4. An account of the intestate's funeral expenses. 5. An inquiry
what parts, if any, of the intestate's personal estate are outstanding
or undisposed of. Let the intestate's personal estate be applied in
payment of his debts and funeral expenses in a due course of adminis-
tration.— ^Adjourn further consideration. — Liberty to apply.
Action hy Legatee, hy Trustees, or Executors, or Beneficiary — Personal
Estate — General Accounts.
Declare that the trusts of the will of — , the testator, &c., ought to
be performed and carried into execution, and order and decree the same
accordingly. And the Pits by their counsel submitting to account, Let
the following account and inquiries be taken and made, that is to say, —
1. An account of the personal estate not specificallj^ bequeathed of — r
the testator, come to the hands of the Pits, the executors'of his will,
or [any or] either of them, or to the hands of any other person or
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182 ADMINISTEATION.
persons by or for the order or use of the Defts or any or either of
them. 2. An account of the testator's debts. 3. An account of the
testator's funeral expenses. 4. An account of the legacies [and an-
nuities] given by the testator's will. 5. An inquiry what parts (if
any) of the testator's personal estate are outstanding or undisposed of.
Let the testator's personal estate not specifically bequeathed be ap-
plied in payment of his debts and funeral expenses in a due course of
administration, and then in payment of the legacies and annuities
given by his will. — Adjourn further consideration. — Liberty to apply.
Action hy Trustees, Executors, or Ben^ciaries — Seal and personal Estate- —
General Accounts.
Declare that the trusts of the will of — , the testator, ought to be
performed and carried into execution, and order and decree the same
accordingly. And the Pits by their counsel submitting to account,
Let the following accounts and inquiries be taken and made : — Ac-
counts of personal estate, as in last order. — Let the testator's personal
estate not specifically bequeathed be applied, &c. Let the following
further inquiries and accounts be made and taken ; —
6. An inquiry what real estate the testator was seised of or entitled
to at the time of his death. If ordered : An account of the rents and
profits of the testator's real estate received by the Pits or [any or]
either of them, or by any other person or persons by their or [any or]
either of their order, or for their or any or either of their use. 8. An
inquiry what incumbrances (if any) affect the testator's real estate, or
any and what parts thereof. 9. An account of what is due to such of
the incumbrancers as shall consent to the sale hereinafter directed in
respect of their incumbrances. 10. An inquiry what are the priori-
ties of such last-mentioned incumbrances. If ordered: Let the testa-
tor's real estate be sold with the approbation of the judge free fi-om the
incumbrances (if any) of such of the incumbrancers as shall consent to
the sale, and subject to the incumbrances of such of them as shall not
consent. Let the money to arise by the sale of the testator's real
estate be paid into Court to the credit of this [matter and] cause to an
account to be intituled " Proceeds of Testator's Eeal Estates." And if
such money or any part thereof shall arise from real estate sold with
the consent of the incumbrancers the money so arising is to be applied
in the first place in payment of what shall appear due to such incum-
brancers according to their priorities. — Adjourn further consideration.
— Liberty to apply.
Accounts against Executor of Testator and Executors of deceased Executor.
An account of the personal estate not specifically bequeathed of A.
deceased, the testator, &c., come to the hands of B., the deceased exe-
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ADMINISTRATION. 183
cutor, and of the Deft C, the surviving executor, or to the hands of
any other person or persons, hy their or either of their order or use.
Let what on taking the said p,oooimt shall appear to be due from the
Deft C. be answered by him personally, and what shall appear due
from the estate of B. be answered by the Defts D. and E., the execu-
tors of his will (they having admitted assets for that purpose^ [or, if
assets not admitted : out of his assets in a course of administration.
And in case the said Defts D. and E. shall not admit assets of the said
B., Let an account be taken of the personal estate of the said B. come
to the hands of the said Defts or either of them, or to the hands of
any other person or persons by or for the order or use of the Defts or
either of them .J Usual other accounts of testator's estate. — Further
consideration reserved. — Liberty to apply.
Accounts against Executors of sole Executor.
An account of the personal estate not specifically bequeathed, &c.,
come to the hands of B. [the deceased executor] and of the Defts C.
and D., the executors of his will, or to the hands of any other person
or persons by their or either of their order or use. Let what on taking
the said account shall appear to be due from the said Defts be answered
by them personally ; and what shall appear due from the estate of the
said B. deceased be answered by the said. Defts C. and D. as such exe-
cutors (they having admitted assets of the said B. for that purpose)
[or, if assets not admitted : in a course of administration. And in case
the said Defts shall not admit assets of the said B. for that purpose.
Let an account be taken of the personal estate of the said B. come to
the hands of the said Defts, or either of them, or to the hands of any
other persons or person, by or for the order or use of the Defts or
either of them.J
Account against Executors of both Executors.
An account of the personal estate of A., the testator, &c., come to the
hands of B. and C, the executors of his will, or to the hands of the
Defts D. and E., the executors of the will of the said B. (who survived
the said C), since the death of the said B., or any of them, or of any
other person or persons by their or any of their order or use. Let
what on taking the said account shall appear to be due from the Defts
D. and E. be answered by them personally, and what shall appear to
be due from the estate of the said 0. be answered by the Defts P. and
G., the executors of his will (they having admitted assets for that pur-
pose) [or, if assets not admitted : out of his assets in a course of adminis-
tration. And in case the Defts F. and Gr. shall not admit assets of the
said C. for that purpose, Let an account be taken of the personal estate
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184 ADMINISTEATION.
of the said C. come to the hands of the Defts F. and G., or either of
them, or to the hands of any other person or persons by their or either
of their order or use]. Let what on taking the said account of the per-
sonal estate of the testator A. shall appear to be due from the estate of
the said B. be answered by the Defts D. and E., they having admitted,
&c.. [If assets not admitted : out of his assets in a course of administra-
tion. And in case the Defts D. and E. shall not admit assets of the
said B. for that purpose, Let an account be taken of the personal estate
of the said B. come to the hands of the said Defts D. and E., or either
of them, or to the hands of any other person or persons by or for
the order or use of the Defts or either of them.
Special Inquiries.
Pure and impure Personalty.
Let an inquiry be made what part of the testator's personal estate
consists of pure personalty, and what part of personalty savouring of
realty.
Heir-at-Law.
As to heirs'ttt-law : Let an inquiry be made who was the heir-at-law
of the testator [or, intestate] at the time of his death, and whether
such heir is living or dead, and if dead who by devise, descent, or
otherwise is entitled to such real estate, if any, of the testator, as
' descended to such heir-at-law.
As to customary heir : An inquiry who was the heir of B., the testa-
trix, &c., according to the customs of the manors whereof her copyhold
estates are respectively holden, living at the time of her death, and
whether, &c.
Sales and Contracts.
An inquiry whether any and what parts of the testator's real estate
have been sold, and if so, by and to whom, and for what sum or sums
of money, and by whom the purchase-money has been received, and
how the same has been applied and disposed of. Bumbold v. George,
1858, B. 1281 ; Seton, 263. And if it shall appear that any part of the
said purchase-money has been received by the Defts, or any of them,
or by any person or persons by or for the order or use of the Defts or
any or either of them, an account of the proceeds of such sale received
by the Defts, or any of them, or by any other person or persons, &c.
Arnold v. Young (L. J. J. for V.-O. W.), Aug. 8, 1873.
Building Contracts — Inquiry as to Liability of Estate.
An inquiry whether any and what contracts weie entered into by
— for building or completing the farm buildings situate at — , or for
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ADMINISTRATION. 185
executing any and what other works on the real estates of the said —
or on any and what part thereof; and whether such contracts, or any
and which of them respectively, are binding and ought to he carried
into execution, and if so, what is the extent of the liability of the estate
of the said — under such contracts, and what sum or sums of money
ought to be applied out of the personal estate of the said — for the
complete performance thereof. Langton v. Burton, 1852, B. 482;
Seton, 264.
General Contracts by Trustee or Executor of Will — Since Testator's Death.
An inquiry whether the Deft, the trustee and executor of the will of
— , has since his death sold any and what part or parts of the testator's
real estate devised by his will to be sold, or entered into any and what
contract or contracts with any person or persons for the sale thereof,
or- of any and what parts thereof, and for what sum or sums of money ;
and whether any and what proposal or proposals, with a 'view to any
such sale has or have been made, and when and with whom. And if
it shall appear that any part thereof has been sold, an account of the
money arising by such sale, and how such money has been applied or
disposed of ; and if it shall appear that the said Deft has entered into
any siich contract or contracts, or that any such proposal or proposals
has or have been made which have not been carried into execution ;
an inquiry whether such contract or contracts, or proposal or proposals,
is or are proper, and for the benefit of the Pits, the infants, to be carried
into execution, and whether or not with any and what modifications..
Strong v. Hawhes, 4 De G. M. & G. 1 86 ; Seton, 264.
Contracts — Purchases by Testator.
An inquiry whether the testator was at the time of his death under
any and what contract for the purchase of any and what estate ; and
if so, whether the testator paid any and what part of the purchase-
money for the same, and whether the testator accepted the title thereto.
And in case it shall appear that the testator had not accepted the title
to the said estate at the time of his death, an inquiry whether a good
title has been or could be made to the said estate. And in case the
testator has accepted the title to the said estate, or that a good title
has been or can be made thereto, Let an inquiry be made whether the
Defts have completed the said contract, and paid any and what part
of the purchase-money for the same. And if it shall appear that the
Defts have completed the said contract, Let an account be taken of the
rents and profits of the estate comprised in the said contract received
by the Deft. Harding v. Harding ( V.-C. B.), July 30, 1870.
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186 ADMINISTEATION.
Contracts by Testator's Hxecutors — Testator's Moneys — Incumbrances.
An inquiry whether the piece of land at — , in the pleadings men-
tioned, was purchased either wholly or in part, and if in part only
then to what extent, out of the testator's estate. And if it shall appear
that a part only of the purchase-money was provided out of the
testator's estate, then by whom the rest was provided, and to whom
and in what shares and proportions the said piece of land and the
buildings thereon now belong. An inquiry whether the dwelling-
house and buildings which have been erected on the said piece of land
since its purchase were erected wholly or in part, and if in part then
to what extent, out of moneys belonging to the testator's estate, and
what, if any, charges or liens are now existing, and in whose favour,
upon the said piece of land and the dwelling-house and buildings there-
on in respect of the moneys expended in the erection of such dwelling-
house and buildings, and what is due and to whom in respect of the
same. An inquiry whether any and what incumbrances other than
the said charges or liens are now subsisting on the said piece of land
and the messuage and buildings thereon, and by whom and under
what circumstances these mortgages and incumbrances were respec-
tively created, and what is due and to whom in respect of the same
respectively, and by|whom what is so due ought ultimately to be paid.
And if it shall appear that the said piece of land and the dwelling-
house and buildings thereon belong wholly or in part to the testator's
estate. It is ordered that an inquiry be made what occupation rent
ought to be charged against the Defts Skoyles and wife (the executors)
or either and which of them in respect of the occupation thereof
by them or either of them. Spilling v. Skoyles (V.-C. B.), March 22,
1872.
Contract for Purchase by Testator — Purchase-money to be paid out of
Personalty — Declaration as to Realty.
■Declaee that the Pit, as the heir-at-law of J. M. the intestate, is
entitled to have the balance of the purchase-money for the freehold
hereditaments situate, &c., agreed to be purchased by J. M., the intes-
tate in the pleadings named, as in the chief clerk's certificate mentioned
(but which purchase had not been completed at the time of the death
of the said intestate), with interest, &c., on such balance paid and
satisfied out of the intestate's personal estate, and order and decree the
same accordingly. Declare that such balance is not in regard to the
vendor's lien in equity for the same a sum of money with the payment
of which the said hereditaments are charged by way of mortgage, and
to which such hereditaments are primarily liable within the intent
and meaning of the statute 17 & 18 Vict. c. 113, intituled "An Act
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ADMINISTRATION. 187
to amend the Law relating to the Administration of Deceased Persons,"
or the statute 30 & 31 Vict. c. 69, intituled " An Act to explain the
Operation of an Act passed in the 17 & 18 Vict. c. 113, intituled," &o.
Let the said purchase he completed with the approbation of the judge.
And Let the said balance and the costs and expenses of the conveyance
of the said hereditaments to the Pit (such costs and expenses to be
taxed by the taxing master) be paid by the receiver appointed in this
cause out of the outstanding personal estate of the intestate. Sarding
V. Harding (V.-C. B.), March 22, 1872.
Exchange — Inquiry if beneficial.
An inquiry whether it is fit and proper and for the benefit of the
testator's estate, and the persons entitled thereto, that the agreements
dated, &c., for the exchange of the estates and premises in the tes-
tator's will mentioned should be carried into execution, and whether
with or without any and what variations, and whether any and what
proceedings should be taken in reference thereto Cope v. Evans, 1858,
A. 1783 ; Seton, 267.
Mortgages — Inquiry how created — How paid ofi.
An inquiry what mortgages, securities, and charges made of or
upon any part of the testator's real estate in his lifetime were owing
at the time of his death, and what, if any, mortgages, securities, and
charges have been made by the Defts, the trustees, &c., in pursuance
of his will, and whether the same have been properly made, and
whether any and what sums are now due and owing in respect of
any such mortgages, securities, or charges respectively, and in whom
the same are now vested respectively, and what mortgages, securities,
or charges on the testator's real estate have been wholly or in part
paid off by the said Defts out of the rents and profits of the said
estates, or out of any and what other funds forming part of the
testator's estate. JenMnson v. Makin, 1856, A. 821 ; Seton, 268.
Occvpation Bent,
An inquiry whether — has since the death of the testator been in
the occupation of any part of the said freehold and copyhold estates,
and if so. Let an annual value be set thereon by way of rent during
the time the Deft was in the occupation thereof, and Let him be
charged therewith.
Dower — Inquiry — Sale.
An inquiry whether the Deft A., the widow of the testator B., is
entitled, to dower or freebench out of any and what part of the tes-
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188 ADMINISTEATION.
tator's real estate. Let the sale hereinbefore directed be subject to
such dower, if any, unless the said A. shall come in and consent to
have a value set thereon. And in such case Let a value be set
thereon accordingly, and the said sale be free from such dower. Let
the amount of the value of the said dower be paid to the Deft out of
the money to arise by such sale. And in the meantime Let the same
be paid into Court to the credit, &c. Chuhh v. Witt (L. J. J. for V.-C. W.),
March 8, 1873.
Dower — Inquiry — Meceiver.
An inquiry whether the Deft A. is entitled to dower or freebench
out of any and what part of the testator's real estate. And if it shall
appear that the said A. is so entitled, Let the lands out of which she
is dowable be distinguished from the other lands. Let an allowance
be made to the said Deft for or in respect of such dower or freebench
(if any) as she may be entitled thereto. Let the receiver out of the
rents and profits of the lands in respect of which the Deft A. is
entitled to dower pay vsrhat shall be certified to be due to her. Harding
V. Harding (V.-C. B.), July 30, 1870.
Dower — Government Annuity.
The Deft E., the widow of — , deceased, the intestate in the plead-
ings named, being entitled to dower out of his real estate, and having
consented to the sale of such real estate discharged from her dower,
Let the Pit enter into- a contract with the Commissioners for the
Reduction of the National Debt for the purchase of a government
annuity of £ — or as near to that sum as such contract can be entered
into in the name and on the life of — by a transfer of Bank 3 per
Oeat. Annuities to the said Commissioners. — Consequential directions.
See post, p. 195.
Election.
Settlement and Will.
Declare that the Defts C, and A., his wife, are respectively bound
to elect between the benefits of the covenant of the testator to pay
the sum of £ — per annum contained in the settlement made on the
marriage of — , and the benefits given to them respectively by the
testator's will. Hart v. Tulk, 1852, H. 381 ; Seton, 260.
Infants — Inquiry.
Declare that the children of — ought to elect whether they will
take according to the provisions of the indenture of settlement dated,
&o., or against the same. And the said — being infants, Let an
inquiry be made whether it will be for their benefit to take under
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ADMINISTRATION. 189
the provisions of the said settlement or against the same. Seton v.
Smith, 11 Sim. 59 ; Seton, 260.
Testator's Widow — Inquiry as to Election.
An inquiry to whom the premises situate, &c., belonged at the
testator's death, and if the same helonged to his widow, or whether
she elected in her lifetime to take under the testator's will. Peek t.
Peek, 1859, B. 879 ; Seton, 260.
Domicile.
Common Inquiry.
Let an inquiry be made where T. C. died, and whether or not in-
testate, and where he was domiciled at the time of his decease, and
who, according to the law of such domicile was at his decease entitled
to his personal estate. Carter v. Carter (M. R.), April 21, 1860.
Domicile — Special Inquiries,
Let the following inquiries and accounts be made and taken : —
1, An inquiry where E. E. the testator, &c., was domiciled at the
time of making his will, and from thence to and at the time of his
decease. And in the event of its being ascertained that the said tes-
tator's domicile was other than Anglo-Indian or English : 2. An in-
quiry whether, according to the law of the country of the testator's
domicile at the time of his death the bequests and directions contained
in the said testator's will and codicil are wholly or to any and what
extent valid, and what is the legal effect thereof. And in case of the
testator having, according to such last-mentioned law, died to any
extent intestate, who are the persons according to such law entitled
to the personal estate of which he may have died intestate. 3. An in-
quiry who were the next of kin of the testator living at the time of
his decease according to the laws of England, Scotland, and Jersey,
respectively, and whether any of them have since died, and if so, who
is or are their legal personal representatives. — Usual accounts of
personalty and inquiries as to real estate. — Further consideration
adjourned. — Liberty f o apply. Haldane v. Echford, (V.-C. W.), July 8,
1865.
Don^icile^Declaration — Accounts and Inquiries.
Declare that the domicile of W. E. the testator, &c., on the 18th
June, 1862, the date of the birth of the Deft W. C. D., and on the
13th August, 1863, the date of the testator's marriage with the Pit
E. D., and thenceforth to the time of his death^ was in Scotland. De-
clare that E. D. the Pit in the firbt-mentioned suit, the widow of the
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190 ADMINISTRATION.
testator, is entitled to elect between her rights in his estate as the
widow of a domiciled Scotchman and those tinder the testator's Eng-
lish will.
Let the following accounts and inquiries he taken and made : —
Usual accounts of personal estate. — And the said testator's personal
estate not specifically bequeathed is to be applied in payment of his
debts and funeral expenses. 6. An inquiry whether the testator
has had any and what children, and when they were respectively
born, and whether any and which of them have died, and when, and
if any of them have died, who are their respective legal personal re-
presentatives. 7. An inquiry who was the heir-at-law of the testa-
tor according to the law of Scotland and the law of England respec-
tively at the time of his death. 8. An inquiry whether the Pit
E, D. has expended any and what sums for the past maintenance of
any and which of the testator's children, and whether any and what
allowance ought to be made to her in respect of such expenditure, and
what is a proper sum to be allowed for the maintenance and education
of such children during their minorities. 9. An inquiry what the tes-
tator's heritable property in Scotland consisted of at the time of his
death, and whether the testator died intestate as to any and what
parts thereof, and if he died intestate, on whom the same devolved,
and whether the same was or was not subject to any and what claim
on behalf of the testator's widow to terce, and what are the respec-
tive rights and liabilities of the person or persons on whom the same
devolved and of the testator's widow respectively, both as against the
persons claiming under the testator's will, and as against such of the
testator's children as are entitled to legitim, and what were the re-
spective values of such property, or of such parts thereof as are undis-
posed of by the testator. 10. An inquiry what real estate and what
leasehold estate the testator was seised of or entitled to in England at
the time of his death, and what were the lespective values thereof.
11. An inquiry what part of the testator's property was specifically
bequeathed, and who is in possession of the same, and what was the
value thereof. 12. An inquiry what at the time of the testator's death
was the value of his moveable estate in England or elsewhere other
than his specifi-cally bequeathed estate. 13. An inquiry what' is the
nature and extent of the right (if any) of the testator's widow ac-
cording to the law of Scotland in respect of her jug relicta. 14. An
inquiry whether the children of the testator are entitled, according to
the law of Scotland, both to the benefits given to them by the will
and also to their legitim, and what is the nature and extent of the
right to legitim (if any) of such children. And in case they are not
so entitled, whether it will be for the benefit of such of the said
children as are infants to approbate or reprobate the provisions of the
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ADMINISTRATION. 191
said will. — Ditections for transfer of sum of stock into Court by the
executor. — Further consideration adjourned. — Liberty to apply. Doug-
las V. Dmglas (V.-O. W)., July 17, 1871.
Common Directions.
Transfer and Payment into Court.
Let — on or before the — day of — transfer the £ — Consolidated
£3 per Cent. Annuities [or, Eeduced £3 per Cent. Annuities, or. New
£3 per Cent. Annuities] standing in the names of, &c., into Court to
the credit of this cause A v. B. 1875, A. 100, and receive any dividends
on the said annuities now due or to become payable to him before or
after such transfer, and within — • days after such receipt pay such
dividends into Court to the same credit. If ordered : Let such divi-
dends when so paid in and the dividends as they accrue on such
annuities, and all accumulations thereon, be invested in like annuities.
Deposit in Court of Exchequer Bills.
Let — on or before the — day of — deposit in Court to the credit
of this cause, A. v. B. 1875, A. 100, the following Exchequer bills,
admitted, &c., and amounting in the whole to £ — , that is to say,
No. 100 for £500, dated, &c., and No. 90 for £100, dated, &c., or any
other bills for which the same may be exchanged.
Deposit in Court of Securities passing hy delivery, other than
Exchequer Bills.
Let — on or before the — day of — deposit in Court to the credit
of this cause A. v. B., &c., the following securities, that is to say,
, &c., amounting together to £ — [or, the securities mentioned
in the schedule hereto amounting together to £ — ], If ordered : Let
any principal money to be received in respect of any of such securi-
ties be invested in, &c. [or, be placed on deposit, &c.]. Let the divi-
dends as they accrue, &c., be paid, &c. [or, be invested, &c.J.
Deposit in Court of Securities passing hy Deed.
Let — deposit in Court to the credit, &c., the two shares of the —
Company, amounting together to £ — , and execute and procure to
be executed a transfer of such securities to the account of the Pay-
master-General for the time being of the Chancery Division of the
High Court of Justice, [or, the securities mentioned in the schedule
hereto amounting together to £ — J. Let any principal money to be
received in respect of any such securities be invested, &o. [or, placed
on deposit, &o.], and the dividends, &c., paid, &c.
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192 . ADMINISTEATION.
Deposit in Gourt of Plate or Jewels, and those Securities which must he
' in a Box.
Let the Deft B. on or before the — day of — deposit in a box in
tbe presence of the solicitors for, &c., the several articles of plate
[or, jewelry, or, the certificates and other docTiments of title of the
— shares in the — Company set forth in the schedule hereto]. And
such box is to be indorsed " In Chancery, A. v. B., &o., " Plate" [or,
" jewelry," or, " securities "]. Let the said Deft B. within the time
aforesaid deposit such box in Court to the credit of this cause, A. v. B.,
&o. If required, add : Let such box be delivered out within fifteen
days after the — day of — and the — day of — , and after the same
days in each succeeding year, to the Deft B. for the purpose of receiv-
ing the dividends on such securities. Let the Deft B. replace the said
securities in such box in the presence of the solicitors for the Pit.
Let the Deft B. on or before the — day of — and the — day of — ,
and the same days in every succeeding year, re-deposit such box in
Court to the same credit. Let the Deft B. receive such dividends,
and on or before the — day of — , and the — day of — , and the —
same days in each succeeding year, pay such dividends into Court to
the same credit.
Bond deposited, paid off — Delivery out.
Let the applicant the Deft E. C. be at liberty to remove from the
box indorsed "In Chancery, Cassavetti v. Gassavetti, 1869, C. 113,
Indian and Foreign Investments," and deposited in Court to the credit
of this cause, Gassavetti v. Gassavetti, 1869, C. No. 113, the bond num-
bered B. 1858, being one of the bonds for £500 cash of the Turkish
Six per Cent. Loan, 1854, being item 7 in the schedule to the order
made in this cause and dated the 23rd July, 1869, which is to be
paid off. Let the said Deft E. 0. be at liberty to pay the proceeds of
the said bond when received into Court to the credit of the said
cause to an account to be intituled " The Account," &c. (the amount of
such proceeds to be verified by affidavit). — Directions for investment
and payment of income. Gassavetti v. Gassavetti (V.-C. B.), Jan. 22
1875.
The following securities may be brought into Court under sects. 3, 6, and 10
of the Chancery Act, 1872, viz. : 1. Those passing by delivery, as Exchequer
bills. 2. Those transferable in books, as Consols, Ueduced and New £3 per Gent.
Annuities. 3. Those transferable by registered deed.
The order as regards securities comprised under class 1 would be to " deposit "
and under classes 2 and 3 would be to " transfer."
Securities consisting of bonds or debentures which require a transfer to com-
plete the title may in some cases be deposited without a box, but, Generally
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ADMINISTEATION. 193
securities not comprised in any of the classes enumerated above, including secu-
rities passing by indorsement, must be placed in a box, and tbe box deposited in
Court.
Transfer and Payment into Court.
" Money and securities may be paid or transferred into or deposited in Court, and
be placed in the books at the Chancery Pay Office to the credit of a cause or
matter, on a [direction to be obtained from the Chancery paymaster, upon the
written request of the person desirous of so paying, transferring, or depositing, or
of his solicitor, without an order ; but no such payment, transfer, or deposit shall
be so made to a separate account in a cause (except to a security for costs
account) unless such separate account have been directed to be opened by an
order, and such request shall be filed in the Eeport Office. This rule shall not
apply to money or securities directed by an order to be paid, or transferred into,
or deposited in, Court, nor shall it apply to money or securities payable or trans-
ferable into Court, in pursuance of an Act of Parliament or a General Order of the
Court, by which some particular authority is required to enable the payment,
transfer, or deposit to be made " : Chancery Funds Bules, 1874, rule 25.
" A person directed by an order to make a payment, or transfer into, or deposit in
Court shall be at liberty to mak« the same without further order, notwithstanding
the order may not have been served, or the time thereby limited for making such
payment, transfer, or deposit may have expired : and if any further sum of money
has, by reason of such default, become payable by such person for interest, or in
respect of dividends, he shall be at liberty to pay into Court such further sum
upon a request as provided by rule 25 ; provided that any such subsequent pay-
ment, transfer, or deposit shall not affect or prejudice any liability, process, or
other consequences which such person may have become subject to by reason of
his default in making the same within the time so limited " : Chancery Funds
Rules, 1874, rule 27.
" The time for making any such payment, transfer, or deposit may be also, if
necessary, extended by a supplemental order referring to the former order, but with-
out repeating the directions for such payment, transfer, or deposit. Such supple-
mental order may be made on an application to the judge at chambers " : Ibid.
Orders on Further Consideration.
Payment of Costs, Debts, and Legacies — Carryings over — Government
Annuity — Debts under £10.
Tax the costs of the Pits and Defts of this action, the costs of
the Deft B., the executor [or, administrator], to be taxed as between
solicitor and client, and including in the costs of the said Deft anj'
costs, charges, and expenses properly incurred by him relating to the
administration of the testator's [or, intestate's] estate [or, the execution
of the trusts of his will].
Let subsequent interest be computed upon the debts of the testator
[or, intestate] mentioned in the — schedule to the chief clerk's
certificate dated, &c, at such rate of interest as the same respec-
tively oarrj"-. Let the amount of such subsequent interest from the
date of the said certificate, and the amount due to the several
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194 ADMINISTRATION.
creditors therein named for principal and interest in respect of their
debts, and the total amount thereof, be certified. Let so much of the
£— Consolidated [or, Eeduced, or. New] £3 per Cent. Annuities in
Court to the credit of this cause, A. v. B., &c., [as, with the £ — cash
and £ — money on deposit to the like credit, and any interest to be
credited in respect of the said money on deposit] will raise the said
costs, when taxed, and also the total amount of the said debts and
interest, be sold, and out of the money to arise by such sale [and the
said cash, money on deposit, and interest] the said costs be paid as
follows, &c. And thereout also Let the several amounts which shall
be certified to be due to the several creditors named in the schedule
to the said certificate in respect of their debts and interest be paid
to them respectively. Let subsequent interest be computed on the
several legacies mentioned in the — schedule to the chief clerk's cer-
tificate. Let -the amount of such subsequent interest and the total
amounts due to the several legatees therein named for principal and
interest in respect of such legacies be certified. Let the residue of
the said Consolidated [or, Eeduced, or. New] £3 per Cent. Annuities
be sold. Let out of the money to arise by the said sale, and any
dividends to accrue on such residue [If duty payable : the amount of
the duty payable in respect of the residuary estate of — the testator
(the amount to be officially assessed and verified by affidavit) be trans-
ferred upon the requisition of the Commissioners of Inland Eevenue
to the account of public moneys of the Eeceiver-General of Inland
Eevenue. And Let out of the said moneys and dividends] the several
amounts certified to be due to such legatees be paid to them respec-
tively [except as hereinafter mentioned].
[]/ infant legatee : Let the amount which may be certified to be due
to the infant A. be carried over to the credit of, &c., to an account to
be intituled "The account of the infant — (subject to duly)."] — Invest
and accumulate.
If share of married woman to he carried over : Let what shall be cer-
tified to be due to A., the wife of B., be carried over to the credit of,
&c., to an account to be intituled " The account of A., the wife of B.
(subject to duty)." — Invest and accumulate.
If annuity to be provided out of stoch : Let the sum of £ — , Conso-
lidated £3 per Cent. Annuities, part of the £ — like annuities standing
to the credit, &c., be carried over to the credit of the same cause to an
account to be intituled " The account of the annuitant A. (subject
to legacy duty)." Let the dividends as they accrue due during the
life of the said A. upon the said Bank Annuities so to be carried over
be paid to the said A. And upon the death of the said A. any persons
interested in the said Bank Annuities are to be at liberty, to apply as
they may be advised.
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ADMINISTRATION. 195
If annuity to he provided out of cask : Let so much of £ — cash in
Court on the credit, &o., as will purchase £ — Consolidated 3 per Cent.
Annuities, be invested in Consolidated £3 per Cent. Annuities to the
credit, &c., " The account of the annuitant A. (subject to legacy duty)."
Let the dividends, &c.. If annuity fund deficient: Let out of the dividends
as they accrue on the said £ — Consolidated £3 per Cent. Annuities
the annuity of £ — be paid to the said — during her life, or until
further order, by equal half-yearly payments of £ — and £ — on the
— day of — , and — day of — in every year, the first payment to
be made on the — day of — . And in case such dividends shall at
any time be insufficient. Let so much of the said Annuities, or of
the residue thereof for the time being as with the dividends thereon
will raise the said half-yearly payments of £ — , be from time to
time sold. Let out of the money to arise by the said sales and
dividends the said annuity of £ — be paid as hereinbefore directed.
If Government annuity to be purchased : Let — enter into a contract
with the Commissioners for the Eeduction of the National Debt for the
purchase of a Government annuity of £ — , or as near to that sum as
such contract can be entered into, in the name and on the life of —
by a transfer of Consolidated £3 per Cent. Annuities to the said
Commissioners. Let so much of the £ — Consolidated £3 per Cent.
Annuities on the credit, &c., as shall be the amount at which the Pit
shall contract for the purchase of such life annuity (such amount to
be verified by affidavit) be transferred to the Commissioners for the
Eeduction of the National Debt as the consideration for the purchase
of such life annuity.
Debts under £10 : And in case any of the sums certified to be
due to the creditors of the said — shall not amount to £10, Let the
same be paid to M. — , the solicitor of the Pit [or, Deft], he under-
taking to pay the same to the parties respectively entitled thereto.
Directions for division and payment of ultimate residue. — ^Liberty
to apply.
Payments, hy Reference to Schedule, of ascertained Debts and Legacies, dc.
Let out of the moneys to arise by the sale, &c. [or, out of the cash,
&C.J, the sums mentioned in the 6th column of the first schedule
hereto, amounting together to £ — , be paid to the persons whose names
are in the first column of the same schedule set opposite to such sums
respectively. [And thereout also Let the sum of £ — , being the assessed
amount of the legacy duty payable on, &o., be upon the requisition,
&c., transferred, &c.] And thereout also Let the sums mentioned in
the seventh column of the second schedule hereto, amounting together
to £ — , be paid to the persons whose names are in the first column of
the same schedule set opposite to such sums, respectively.
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196
ADMINISTEATION.
Let the residue of the said moneys [or, cash], and any dividends
to accrue, &o., he paid to the several persons named in the first
cohimn of the third schedule hereto, or be carried over to the credit
of this cause, &c., to the several accounts mentioned in the second
column of the same schedule, in the proportions in the third column
of the same schedule set opposite to the respective names of such
persons or the respective titles of such accounts.
Schedule ahove referred to.
First Schepule.
1.
Names of
creditora.
2.
Principal soma.
3.
Total amounts
' certified.
4.
Kate of interest.
6.
Subsequent
interest.
6.
Sums
payable.
Second Schedule.
1.
1 Namea of
legatees.
2.
Amount of
legacies.
3.
Amounta
csrtlfled to
be due.
4.
SBbsequent
interest.
S.
Total of
'Principal and
interest.
6.
Legacy
duty.
1.
Sums
payable.
THIED SCHEDDIiE.
1.
Karnes of transferees.
Titles of aoeonnts.
The account of A^ an infant.
3.
and dividends.
Hotchpot Provisions,
Common Clause.
Let, for the purpose of computation, the sum of £ — J the sum
paid or advanced] be added to £ — [the amount of the fund divisible].
Let the total amount be divided into — equal parts, and Let out of
the said £ — (fund divisible) one of such — equal parts, after deduct-
ing therefrom the said sum of £ — (the sum paid or advanced), be paid
to the said — .
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ADMINISTRATION, 197
Hotckjpot Provisions— Payment into Court of Advances in excess of Shares.
Let, to the residue of the moneys, cash, and interest which after the
payments aforesaid will be in Court to the credit of this cause, &c,,
there be added for the purposes of computation the sums of £1105 9«. 5d.
and the total amount divided into six equal parts. And if it shall
appear that the sum of £1106 98. 5d. ei^ceeds one of such sixth parts,
Let the Deft H. S., within twenty-eight days after the date of the
chief clerk's certificate to be made in pursuance of this order, pay
into Court to the credit of, &c., the amount of such excess. And if it
shall appear that the sum of £1105 98. 6d. is less than one of such
sixths. Let out of such residue a sum equal to one of such sixths,
after deducting thereout the said £1105 9s. 2d., be paid to the Deft
H. S. — Usual directions for payment of the remaining sixths. Sugden
V. Odling (M. E.), May 6, 1874.
Hotchpot Provisions — Interest on Sums advanced — Incumbered Shares.
Directions for taxation and payment of costs and duty. — ^Let the
ultimate residue of the money in Court be divided among the twelve
children of the testator named in his will, according to their respec-
tive interests therein, after deducting any advances already madei
Let the several amounts of their respective shares be certified. And
for the purpose of such division Let interest be computed on the
several sums paid to <3r retained by the children of the testator as
mentioned in the first schedule to the chief clerk's certificate datedj
&c., at the rate of 4 per cent, per annum, less income tax, from the
date of such respective advances up to the date of the chief clerk's
certificate to be made in pursuance of this order. Let the total amount
due from such children in respect thereof be certified. Let subsequent
interest be also computed on the several principal sums mentioned in
the second part of the said schedule of the said certificate, dated, &c,,
except, &c. Let the total amount of such advances and sums retained
by the testator's children, and such interest aforesaid, be {added to the
residue of the money in Court and the total amount thereof certifledj
Let such total amount be divided into twelve equal parts j Let one of
such twelfths be certified as the share of the Pit, one other of such
twelfths, after deducting therefrom the amount due from the late Deft
J. H., be certified as the share of the late Deft J. H., one other of such
twelfths after deducting therefrom the amount due from the Deft
W. H. be certified as the share of the Deft W. H. [Similar directions
as regards the remaining twelfths.] Let interest be computed on the
several incumbrances created upon the shares of E. H. and J, H, men-
tioned in the 14th paragraph of the chief clerk's certificate dated,
&c., at the rate of interest therein specified tip to the date of the certi-
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198 ADMINISTRATION.
fioate to be mad© in pursuance of this order. Let the respective
amounts thereof be certified. But if it shall appear that the sums
advanced to any of the testator's children, together with interest as
aforesaid, are greater than their shares, then such children so overpaid
are to be excluded from participation in the funds dealt with by this
order ; and in that case the chief clerk is to certify the amount of
such overpayments. And any persons interested are to be at liberty
to apply in chambers as to the recovery of such sums so overpaid and
the distribution thereof; and in case of any such overpayment the
said residue of the money in Court, after payment of the said costs and
duty, is to be apportioned among the others of such children in the
same manner as such residue is hereinbefore directed to be divided
among all the said twelve children, and that the amount so appor-
tioned be certified. Let out of the residue of the said money in Court
the following investments and payments be made : that is to say, that
■yf^hat shall be certified to be the share or apportioned share of the
Pits be invested in Consolidated £3 per Cents, to the credit of this
cause, &o., the account, &c. Let the dividends be paid, &c. [Directions
for investment or payment out of other shares.] Let out of what
[if anything] shall be certified as the share or apportioned share of
J. H., if sufB.oient, the sum of £ — , with interest at the rate of £ —
per cent, from the — day of — [the amount to be certified], or the
whole of such share if the same shall not be sufficient, be paid to
W- H., D. L., and E.L., in the said certificate- named, and the residue
(if any) of the said share to the Deft J. H. Let what if anything
shall be certified to be the share or apportioned share of E. W., if
the same shall not exceed £200, be paid J. W. in right of his wife the
said B. W. — Liberty to apply. Syde v. Holland (V.-C. H.), Dec. 6,
1873.
Hotchpot Provisions — Payments on Account of Shares in Besidue — Loss
and Partial Becovery of Assets — Interest.
Declare that the residue of cash and dividends which will be in
Court to the credit of this cause after the several sales, payments, and
carryings over aforesaid ought to be treated as consisting of a principal
sum with interest thereon at the rate of £4 per cent, per annum from
the death of the testator up to the date of the chief clerk's certificate.
Let an inquiry be made what sum of money, with interest at the rate
of £4 per cent, per annum from the death of the testator to the date of
the chief clerk's certificate, would amount to such residue of cash as
aforesaid, which sum of money so ascertained is hereinafter referred
to as the said capital fund. And for the purpose of apportioning the
said capital fund between the children of the testator or their respec-
tive legal personal representatives, Let the amount of the sums of
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ADMINISTEATION. 199
money whicli the several oMldren of the testator or their respective
legal personal representatives have since the death of the testator
respectively received on acconnt of their respective shares in the
testator's estate, or the income thereof, or which have been carried to
a separate account in respect of any such share, including the sums
by the testator's will directed to be taken by them respectively on
account of their shares, be certified. Declare that no child or personal
representative of any child of the testator is entitled to participate in
the said capital fund unless he or she shall bring into hotchpot the
amount of the moneys (if any) by the testator's wiU directed to be
taken by such child on account of his or her share, and the amount of
the moneys received by such child, or the personal representatives of
such child, since the testator's decease in respect of the share of such
child in the testator's estate, or the income thereof, or carried over to
a separate account in respect of such share, and in the case of the
Deft E. A., unless he shall have paid the balance or sum ordered to be
paid by him as aforesaid. Let the said capital sum be apportioned
between the children of the testator or their respective legal personal
representatives, having regard to the declaration lastly hereinbefore
contained. Let the shares of the testator's children, or their legal
personal representatives, or of such of them as having regard to the
said declaration shall be found entitled to participate in the said
capital fand, be certified. Let so much of the said cash in Court as
shall be attributable to interest on the said capital fund as aforesaid
be apportioned among the testator's children or their legal personal
representatives, or such of them as last aforesaid, in proportion to the
shares in which they shall be found entitled to the said capital fund.
Let the amounts so apportioned be certified. — Liberty to apply at
chambers as to the payment or carrying over of the amounts to be
certified in respect of principal and interest as aforesaid, and also as to
the apportionment or division of any moneys which may be received
by the Defts D. A. and C. L. from the Deft E. A. in respect of the
balance or sum ordered to be paid by him as aforesaid. Ackroyd v.
AcJcroyd, L. E. 18 Eq. 313.
Insufficient Estate.
Personalty insufficient — Debts — Aj)portionment.
It appearing that the testator's [or, intestate's] personal estate will
not be sufficient for the payment of his debts and funeral expenses
in full, tax the costs of the Pits and Defts and — (parties having
liberty to attend) their costs of this action as between solicitor and
client, including in the costs of the Deft B. the executor [or, admini-
strator] any costs, charges, a|nd expenses properly incurred by him,
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200 ADMINISTRATION.
&c. Let subsequent interest be computed on the debts, of the tes-
tator [or, intestate] mentioned in tbe — schedule to the chief clerk's
certificate, dated, &c., and at such rate of interest as the same
respectively carry. Let the £ — Consolidated £3 per Cent, [or, —
Eeduced, or, — New £3 per Cent. Annuities] Annuities in Court
to the credit of, &o., be sold, and out of the money to arise by the
said sale, and any dividends to accrue on the said annuities pre-
viously to the said sale [and out of the — cash on the like credit
and the £ — money on deposit on the like credit, and any interest to
be credited in respect thereof], the costs be paid, &o. Let the residue
of the said money, &c., be apportioned among the creditors named in
the chief clerk's certificate, dated, &o., in proportion to the amounts
certified to be due to them respectively. And Let the amounts so
apportioned be certified, and the certified amounts paid to such cre-
ditors respectively. — Liberty to apply.
Note : — Where all the debts carry a uniform rate of interest, the
computation of subsequent interest in the above case would be un-
necessary.
Abatement of Legacies — Apportionment.
[Directions for taxation of costs and payment of costs and debts out
of funds in Court : see p. 193.] And it appearing by the chief clerk's
certificate dated, &o., that the testator's personal estate, after payment
of his debts, will not be sufficient for payment of the legacies given by
his will. Declare that the testator's pecuniary legacies ought to abate
in proportion to the respective amounts thereof. Let the residue of
the moneys, &o., be apportioned among the legatees named in the
chief clerk's certificate in proportion to the amounts certified to be
due to them respectively of their legacies and interest. Let the ap-
portioned amounts be certified and be paid to the said legatees
respectively, or to the legal personal representatives of such of them
as may be dead. — Liberty to apply.
Abatement of Legacies — Valuation — Sale or Movtgage,
It appearing by the chief clerk's certificate dated &c., that the
testator's personal estate not specifically bequeathed -will not be
sufficient for the payment of his debts and funeral expenses and the
costs of this suit. Declare that the said specific bequests in the testator's
will mentioned ought to contribute rateably to make good the same
according to the respective values thereof. And for that purpose Let
a value be set thereon. And Let the proportion to be contributed by
each specific bequest be ascertained and certified. Let an inquiry be
made whether the amount of such deficiency ought to be raised by sale
or mortgage of such specific bequests. And [if it shall be certified
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ADMINISTRATION. 201
that such deficiency ought to be raised by sale or mortgage], Let the
Batue be raised accordingly with the approbation of the judge. Parry
V. Parry, January 24, 1854; Seton, 169.
Abatement of Annuities — Vcduation.
It appearing that the real and personal estate of the testator is in-
sufficient to pay the annuities bequeathed by his will, Declare that
the values of the annuities of such of the annuitants as are now dead
are respectively the amounts that actually became due to them respec-
tively in their respective lifetimes in respect thereof; and that the
values of the said annuities of such of the annuitants as are now living
are respectively the amounts that have actually become due to them
respectively in respect thereof, together with the present values of
their respective annuities (such values to be certified). Declare that
the estate of the testator, after payment of costs and legacy duty, &c.,
ought to be divided amongst the several annuitants in proportion to
the values of their several annuities, when ascertained as aforesaid.
[Consequential directions.] Potts v. Smith, L. E. 8 Eq. 683. See also
Todd V. Bielby, 27 Beav. 363.
Abatement and Apportionment of Legacies — Provisions for Duty —
PaymerU of Besidue,
[Directions for taxation of costs, payment of costs and debts out of
funds in Court, and for computation of subsequent interest on legacies.]
Let the amount payable for duty in respect of each of such legacies
be ascertained and deducted therefrom. And Let the amount due in
respect of each legacy and interest after such deduction, an^ the total
amount payable in respect of such legacy duties be certified. Let,
out of the residue of the said moneys, &o., the amounts which shall
be certified to be due to the several legatees in respect of their
legatees and interest be paid, &c. But in case it shall appear that
the said residue will be insufficient to pay the amounts due in
respect of the said legacies and interest, Let the same be apportioned
among the said legatees in proportion to the amounts due to them in
respect of their legacies and interest, and in that cjise Let the amount
payable for legacy duty on such apportionments only be ascertained
and deducted. Let the amounts due in respect of such apportion-
ments after such deduction, and the total amount payable in respect
of such duty, be certified. Let such certified amounts be paid to the
naid legatees respectively, or to the legal personal representatives of
such of them as may be dead. And in case the ultimate residue
of the said moneys, &c,, shall be more than suffident to pay the
amounts which shall be certified to be due in respect of such
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202 ADMINISTBATION.
legacies and interest in full, and the legacy duties thereon, Let
snch residue be divided into — shares. Let the amount payable for
legacy duty in respect of each share be ascertained and deducted,
and Let the amount payable in respect of each share after such de-
duction and the total amount of such duty payable in respect of such
residue be certified. [Provisions for payment and carrying over of
each share.] And Let the total amount which in any of the cases
hereinbefore provided for shall be certified to be due for legacy duty
in respect of legacies or apportionments [or, upon such ultimate residue
if any] be transferred upon the requisition, &o. Monypenny v. Mony-
penny (V.-C. W.), April 16, 1868 ; Seton, 208.
Similar Order — Sums paid on Account — Duty — Government Annuity.
It appearing that the personal estate of the testatrix is insufficient
to pay in full the several legacies and annuities given by the testatrix's
v(rill, Declare that the said legacies and annuities ought to abate pro-
portionately.— Directions for taxation and payment of costs. — Let the
amount of the legacy duty payable in respect of the said legacies
and annuities be ascertained, distinguishing how much is payable in
respect of each legacy and annuity. Let, out of the residue of
the money to arise by the said sale, what shall be certified to be the
total amount of the said legacy duty, be transferred, &c. Let the residue
of the money to arise by the said sale be apportioned among the several
legatees and annuitants of the testatrix named in the — schedule to
chief clerk's certificate in proportion to their legacies and annuities
respectively, regard being had in such apportionment to all sums of
money wtioh such legatees and annuitants respectively have received on
account of their said legacies and annuities, and regard being had to the
amount of duty payable in respect of the said legacies and annuities
respectively. And for the purpose of making such apportionment, Let
the value of the said annuities respectively be ascertained at the date
of the death of the testatrix. Let interest at £4 per cent, per annum be
computed upon 'such values from the death of the testatrix down to
the time at which interest shall be computed on such legacies. Let
subsequent interest be computed on the several legacies mentioned
in the said schedule to the said certificate. And Let the amount due
for principal and interest in respect of each legacy and annuity be
certified. Let the sum which, in case the principal sum to be appor-
tioned in respect of the annuity of £ — had been laid out upon the
testatrix's death in the purchase of a government annuity for the life
of Gr., would have become payable in respect of such annuity be ascer-
tained. And Let the amount received by the said G. on account of his
said annuity be deducted from such sum. Let the residue (to be certi-
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ADMINISTRATION. 203
fied) be paid to the said G. out of the amount to be apportioned in
respect of the principal and interest of the said annuity of £ — . And
Let the residue of the amount so to be apportioned in respect thereof
be also certified, and be invested in Consolidated £3 per Cent. Annui-
ties. Let the Pit W. enter into a contract -with the Commissioners
for the Eeduction of the National Debt for the purchase of such an
annuity as can be purchased with such Annuities, in his own name,
on the life and for the benefit of the said G. half-yearly, for his
separate use, &c. Let what shall be apportioned in respect of prin-
cipal and interest as the legacy bequeathed to — be carried over,
&c. Wordsworth v. Darrell (V.-O. K.), July 19, 1855 ; Seton, 210.
Specific Legacies and Beal Estate devised to contribute rateably.
[Directions for payment of costs and for getting in outstanding
personal estate.] And in case it shall appear that the personal estate
not specifically bequeathed is insufficient for the payment of the
testator's debts and the said costs. Declare that the leasehold estate
of the said testator bequeathed to D. S. B. for her life, with remainder
to G. B., and the testator's real estate devised are liable to make good
the deficiency according to the respective values of the same estates
respectively. Let what each estate is to pay towards payment of
such debts and costs be certified ; and for the purpose of ascertaining
what share of the annuities should be borne by the last-mentioned
leasehold estate, Let the value of the annuities of £50, £50, and £100
hereinafter mentioned be ascertained, and Let the proportion of such
value, together with the proportion of the debts and costs, including
therein any arrears now due of the said annuities, be contributed and
borne by the same leasehold estate. Let the residue of the said debts
and costs, including therein any arrears of the same annuities now
due, be borne by the real estate, and raised by sale or mortgage of a
sufficient part of the said real estate with the approbation of the judge,
&c. Tonibs v. Boch, 2 Coll. (Ch.) 509; see also Gervis v. Gervis, 14
Sim. 654.
Personalty insufficient — Specifically devised and descended Estates to
contribute ratedhly.
Declare that the testator's personal estate not specifically bequeathed
was the primary fund for the payment of his debts, and that the real
estate acquired by the testator after the date of his will was the next
fund for the payment thereof. And that in case of the deficiency of
such prior funds, then the one-third of his real estate of which the
devise lapsed, &c., and the other two-thirds of such real estate devised
to J. W. and M. B. respectively were applicable pari passu in pay-
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204 ADMINISTRATION.
ment thereof. — Consequential directions. Wood v. Ordish, 3 Sm. &
Giff. 125 ; See also Peacock v. Peacock, 34 L. J. (Ch.) 315 ; Stead v. Har-
daker, L. K. 16 Eq. 176,
Balance of Debts to be raised out of devised Estates rateahly.
It appearing that the testator's fieehold estate and the proceeds of
his real estate at — •, which descended to his heir-at-law, and the rents
and profits thereof, will not he sufficient for the payment of his debts,
&c., Declare that the deficiency ought as between the Defts, the respeo-
tive devisees of the testator's real estates, to be raised and paid out of
the several specifically devised estates rateably, in proportion to the
respective value thereof at the death of the testator. Let such propor-
tion be settled by the judge, and for that purpose Let a value be set
upon the several estates respectively. Let an inquiry be made in
what manner such proportions ought to be raised and paid [or, and
Let such proportions be raised by sale or mortgage of the said estates,
or of a sufficient part thereof, respectively, with the approbation of the
judge.] Seton, 246.
Mesidws/ry Devise of Peal Estate held specific — Pecuniary Legatee and
Residuary Devisee to contribute rateably — Inquiries.
Declare that the legacy of £2000 bequeathed to the Pit E. L. H.
by the will of W. C, the testator in the pleadings named, and the
residuary real estate devised to the Deft J. L. C, are respectively
liable to contribute to the debts of the testator which his general per-
sonal estate is insufficient to satisfy jjro ratd, according to the respec-
tive values of the said legacy and the said residuary real estate at the
death of the testator, &o. Let the following inquiries be made : —
1. An inquiry what is the amount of the deficiency of the testator's
general personal estate and of the money which has arisen and to arise
from the sale of the real estate by the said will directed to be sold for
the payment of his debts. 2. An inquiry what messuages, lands, tene-
ments, and hereditaments of whatsoever tenure passed by the said
residuary devise in the testator's will contained to the Deft J. L. C.
3. An inquiry what were the relative values of the said legacy of
£2000 and of the hereditaments which passed by the said residuary
devise to each other (having regard to the annual sum or yearly rent
•charged on the said hereditaments by the said testator) at the death
of the testator, and in what proportion the said legacy of £2000 and the
said residuary real estate devised to the Deft J. L. C. ought to contri-
bute to make good such deficiency as aforesaid. — Reserve further con-
sideration. Hensman v. Fryer, L. E. 3 Ch. 420, 427.
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ADMINISTRATION. 205
Marshalling.
Personal Estate exhausted hy Specialty Creditors.
" And in case any of the specialty creditors shall exhaust any part
of the personal estate, the simple contract creditors are to stand in
their place and to receive satisfaction pro tanto out of the real assets."
Westfaling v. Westfcding, 3 Atk. 467.
Similar Order — Mortgagee — Simple Contract Creditors.
Declaee that so far as the executrix of the testator E. F. had
exhausted the personal estate to satisfy the mortgagee, the [simple
contract] creditors have a right against the heir-at-law of the testator
for satisfaction of their debts out of the said testator's real estate.
Wilson V. Fielding, 2 Vem. 763.
Mortgagee and Simple ContrOiCt Creditors — Mortgagee partly paid out of
Personalty — Marshalling.
The mortgagee J. A. W., hy his counsel, consenting to a sale of the
mortgaged hereditaments, Let the same he sold, &c., and the money
to arise hy the sale paid into Court, &o. Let an account be taken of
what is due to the said J. A. W., for his principal, interest, and costs,
and out of the money to arise by such sale Let the said J. A. W. be
in the first place paid what shall be certified to be remaining due to
him. And it appearing that the sum of £230 6»., part of the personal
estate of the intestate, has been applied by his administratrix in pay-
ment of a bond debt to B., and that £782 10s. has also been applied in
part discharge of what is due to the said mortgagee J. A. W. on the
said mortgage and for costs. Declare that the other creditors of the
intestate who have come in and proved their debts have a right to
stand in the place of the said J. A. W. on the produce of the copyhold
estate for the sum of £782 10s. so paid to him as aforesaid, and also to
stand in the place of the said B. on the produce of the freehold estate
for the said sum of £230 5s. so paid to him as aforesaid. Let, out of
the residue of the money to arise by the said sale, after payment of'
what shall be certified to be due to the said J. A. W., the fol-
lowing payment and carrying over be made, &c. Aldrich v. Cooper,
8 Ves. 388.
Equities between Second and Third Incumbrancers — First Incumbrancer's
Debt thrown rateably upon both Estates.
It appearing that the £243 198. 8d. New £3 per Cent. Annuities
will be insufficient for the payment in full of the amount certi-
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206 ADMINISTRATION.
fied to be due to the Defts J, and wife for principal and interest,
and costs, Let the sum of £243 19«. 8d. Bank Annuities, part of the
£14,558 17«. Id. Bank Annuities on the credit of, &o. he sold, and out
of the money to arise by the sale the costs of the said Defts be paid,
&o., and the residue paid to the said Defts,
And it appearing that the Pits are the first incumbrancers upon the
estates now represented by the sum of £292 16«., further part of the
said £14,558 17s., and also upon the estates represented by £13,553 12s.
Bank £3 per Cents, further part of the said £14,558, and that
their securities are also a further security for the debt secured by
an indenture dated the 17th of April, 1792, and that if the Pits were to
resort for the payment of the debt due to them to the fund represent-
ing th^ estate comprised in the said indenture of April, 1792, so far as
the same would extend, they would exhaust the whole thereof, and
if they were to resort for payment of the debt due to them exclusi'vely
to the funds representing the estate comprised in the securities of
February and June, 1800, they would to a great extent disappoint the
third incumbrancers on the last mentioned fund. Declare that the said
Pits ought to receive payment of the amount due to them for prin-
cipal, interest, and costs, out of the two funds of £292 10s. Bank
Annuities and £13,553 12s. like annuities, rateably and in proportion
to their respective amounts. — Consequential directions. Barnes v.
Bacster, 1 Y. & C. 401, 404.
Sale or Mortgage of Real Estate.
Personalty Insufficient — Payment of Debts.
It appearing by the chief clerk's certificate dated, &c., that the per-
sonal estate of the testator is insufficient for the payment of his debts
and funeral expenses and costs of this suit. Refer to the taxing master
to tax the Pit and Deft their costs of this suit as between solicitor and
client. Let subsequent interest be computed on the debts of the tes-
tator mentioned in the — schedule to the chief clerk's certificate dated,
&c. Let a sufficient sum to pay what shall be due in respect of such
debts, interest, and costs, be raised by sale or mortgage of the testator's
real estate mentioned in the — ^ schedule to the chief clerk's certificate,
or of a competent part thereof, with the approbation of the judge.
And in case the same shall be raised by mortgage, Let such mortgage
be settled by the judge, and be executed by all necessary parties as the
judge shall direct. Let A., the tenant for life of the said estate [and
the tenant for life thereof for the time being, or — , the trustees of the
will of the testator], keep down the interest of the said mortgage. Let
the money to arise by such sale or mortgage be applied in payment of
such debts, interest, and costs, and be in the meantime paid into the
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ADMINISTRATION. 207
bank to the credit of this cause. [If hy sale, add : " the proceeds of the
sale of the testator's real estate."] And if such money shall be raised
by mortgage, Let, upon the due execution of such mortgage being cer-
tified, out of the said money when so paid into Court the said costs be
paid as follows, &c. And thereout also Let the amounts which shall
be certified to be due to the said creditors of the testator be paid to
them respectively or to the legal personal representatives of such of
them as may be dead. But if such money shall be raised by sale, any
of the parties are to be at liberty to apply in chambers for the appli-
cation thereof as they may be advised.
Raising Portions — Mortgage.
Let a mortgage of the testator's estate be made to a proper trustee
or trustees for securing the portions of, &o. Let such mortgage be
settled by the judge and be executed by all necessary parties as the judge
shall direct. Let — , the tenant for life of the said estate [and the
tenant for life thereof for the time being, or — , the trustees], keep
down the interest of such mortgage. Let such trustee or trustees
execute a declaration of trust of the said sums so to be secured as
aforesaid, such declaration of trust to be also settled by the judge.
Set-off.
Balance found due from Administratrix — Costs.
Let it be referred to the taxing master to tax all parties their
costs, &c., as between solicitor and client, including in the costs
of the Deft any costs, charges, and expenses properly incurred by
her as administatrix, &c. And it being certified by the chief clerk's
certificate that there is due from the Deft in respect of the intes-
tate's personal estate a sum of £732 Os. hd., and it being admitted
that she is in possession of the household furniture, &c., unsold, and
valued, as in the certificate mentioned, at the sum of £70 13s., and
forming part of the outstanding personal estate. Let the Deft be allowed
to retain possession of the said household furniture, &c. And Declare
that in calculating the distributive share of the Deft in the intestate's
residuary personal estate the Deft is to be charged with the said sums
of £732 0«. 5d. and £70 13s., making together the sum of £802 13«. 5d.
And in case the said distributive share shall not exceed the said sum
of £802 13s. 5d., Declare that the said sum is to be retained by the
Deft in satisfaction, first, of her said costs, and costs, charges, and
expenses (if any) ; and, secondly, of her distributive share of and in
the intestate's residuary personal estate, subject, nevertheless, to re-
payment by her to the intestate's residuary personal estate of any
excess occasioned by reason of the said retainer over her distributive
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20S ADMINISTRATION.
share aforesaid. But if such distributive share shall exceed the said
sum of £802 13». 5d., Let the excess be paid to her solicitor in satis-
faction, so far as the same will extend, of the said costs, and costs,
charges, and expenses (if any). And if such excess shall not exceed
the amount of such costs, and costs, charges, and expenses, Let the
whole of such excess be paid to her said solicitor in satisfaction, so far
as the same will extend, of the said costs, and costs, charges, and ex-
penses. And Let the residue of the said costs, and costs, charges, and
expenses, be considered as satisfied out of a proportionate amount of
the £802 13«. 5d. so retained by her as aforesaid. Harding v. Harding
(V.-C. B.), March 22, 1872.
Costs.
Apportionment between Beal Estate and Personal Estate.
Let it be referred to the taxing master to tax the costs of all parties
of this action as between solicitor and client. Let the taxing master dis-
tinguish the costs incurred in relation to the testator's real estate from
the other costs of this action, and certify the respective amounts. Let,
out of the £ — cash in Court to the credit of, &c., " The proceeds of sale
of the testator's real estate," what the taxing master shall certify to be
the amount of the costs incurred in relation to the testator's real estate,
be carried over to the credit of, &c., to an account to be intituled " The
costs account." Let, out of the £ — cash in Court to the credit of, &c.,
" The personal estate account,'' what the taxing master shall certify to
be the amount of the said other costs of this action, be also carried over
to the credit of, &o., " The costs account." Let out of the said sums
when so carried over the said costs be paid as follows, &c.
Costs out of Personalty — If deficient, out of devised and descended Realty
ratedbly.
Declare that the testator's debts, funeral and testamentary expenses,
and the pecuniary legacies given by his will, and not thereby made
payable out of any particular estate or fund, and also the costs of this
suit, and the charges and expenses properly incurred by the Pits as
executors or trustees of the testator's will, ought to be considered as paid
in the first place out of his personal estate not specifically bequeathed,
including such shares of the proceeds of the sale of the leaseholds
specifically bequeathed as lapsed ; and in the event of the same being
deficient, then that as between the pecuniary legatees and the testator's
heir-at-law, the amount of the deficiency of such general personal
estates to answer the testator's debts and the said costs ought to be
bonie and made good by the proceeds of the descended shares of the
real estate devised to the Pits in trust for sale, so far as the same may
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ADMINISTRATION. 209
be sufficient for that purpose. Morley v. Tunstall (M. E.), cited in Bow
V. Bow, L. E. 7 Eq. 414, 416.
Costs — Costs to, he distinguished — Incumbered Shares of Besidue.
Ekfee to the taxing master to tax all parties and A. W. (having
liberty to attend) their costs of suit as between solicitor and client, in-
cluding the costs of the summons taken out by the Pits to vary the
chief clerk's certificate, and also including in the costs of the Defts
J. A., W. D., and L. A. S., any costs, charges, and expenses properly
incurred by them in relation to the trusts of the testator's will beyond
their costs of suit. But in such taxation the taxing master is to exclude
any additional costs incurred by reason of any of the parties interested
in the residuary estate of the testator having assigned, mortgaged, or
incumbered their shares in such residuary estate. And in such taxation
the taxing master is to distinguish the costs and expenses incurred in
or about the sale of the freehold premises situate, &c., from the other
costs of suit, and to distinguish also the costs of the said summons to
vaiy from the other costs. — Directions for discharge of receiver. — Let
the £ — Consolidated £3 per Cent. Annuities in Court to the credit of,
&o., " The personal estate account subject to duty," be sold. Let, out
of the money to arise by such sale, and any dividends, &c., the costs
hereinbefore directed to be taxed (except the costs of the said freehold
premises and the costs of the said summons) be paid to the solicitors of
the parties entitled thereto as hereinafter directed. Let the £
Annuities in Court on the credit of, &c., " The real estate account," be
sold, and out of the moneys to arise by the sale, and any cash, &o., the
costs hereinbefore directed to be taxed of the said sale of the said
freehold premises be paid to the solicitors of the parties entitled thereto
as hereinafter directed. — Dirfections for payment of legacy duty out of
cash on the credit of the cause, " The personal estate account," and for
payment of succession duty out of the cash on the real estate account. —
Tax the Pits and Defts their said additional costs (if any) incurred by
reason of any of the parties interested in the residuary estate of the
testator having assigned, mortgaged, or incumbered their shares in the
said residuary estate. Let the taxing master certify the respective
amounts of such costs, and the respective shares out of which such
last-mentioned costs ought to be paid. Let the ultimate residue of cash
on the personal estate account be divided into eight equal parts. Let
one of such eighths be carried over to the credit of, &c., " The account
of the share of T. B., deceased, in testator's personal estate." Let out
of such one-eighth when carried over the additional costs (if any)
which the taxing master shall certify to be properly payable out of
such one-eighfh be paid to the solicitors of the parties as hereinafter
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210 ADMINISTRATION.
directed. Let the residue of such one -eighth be paid to — , as legal
personal representative of Deft T. B. deceased. Let one other eighth
of the said cash on the personal estate account be carried over to the
credit of, &c., " The account of the share of the Deft C. W. and his
assignees in the personal estate of the testator." Let out of such one-
eighth when carried over the additional costs (if any) which the
taxing master shall certify as properly payable out of such one-eighth,
and also a moiety of the costs of the said summons (to be certified by
the taxing master), be paid to the solicitors as hereinafter directed. —
Directions for payment of mortgage debts and interest out of residue
of such one-eighth, and balance to parties entitled. — Similar directions
for distribution of remaining eighths, for payment of mortgage debts
and interest on particular shares, and as to additional co&ts. — Directions
for division into eighths of I'esidue of cash on real estate account. —
Let one of such eighths be carried over to the credit of the cause,
" The account of the share of the Deft T. B., deceased, in testator's real
estate." Let out of the said one- eighth when carriod over the addi-
. tional costs (if any) which the taxing master shall certify as properly
payable out of such one-eighth be paid to the solicitors as hereinafter
directed. Let the residue of the said one-eighth be paid to the Deft
T. A. B. — Similar directions for distribution of remaining eighths, for
payment of mortgage debts and intei est on particular shares, and as to
additional costs. — Let all costs payable under the directions herein-
before contained be paid as follows (names of parties and their respec-
tive solicitors). — Liberty to apply as to shares on separate accounts
and generally. Downing v. Burdon (M. E.), Nov. 19, 1872.
Costs — Incumbered Shares of Besidue — Costs of Mortgagors to he paid to
Mortgagees, &c.
Tax the costs of the Pits and of the Defts (other than such of them
as are assignees, mortgagees, or incumbrancers) of these suits as be-
tween solicitor and client. But in taxing the costs of the Defts other
than the executors the taxing master is to exclude any additional costs
incurred by reason of the said Defts or any of them having as&igned,
mortgaged, or incumbered their respective shares or interests in the
estate of the testator. Let so much of the £— Consolidated £3 per
Cent. Annuities on the credit of, &c., as will raise such costs when
taxed be sold. Let the taxing master also tax the costs of the Defts,
the assignees, mortgagees, and incumbrancers, of these suits as be-
tween solicitor and client, and certify in respect of whose shares or
interests respectively such costs have been incurred. Declare that the
costs of the Defts who are assignors or mortgagors ought to be. paid
to their respecitive assignees, mortgagees, and incumbrancers in or
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ADMINISTRATION. 211
towards satisfaction of tlie costs of such assignees, mortgagees, and
incumbrancers, so far as the same may be required for the payment of
such costs ; but that if the costs of the Defts, the assignors or mort-
gagors, shall exceed the costs of their assignees, mortgagees, or incum-
brancers respectively, the amount of such excess ought to be paid to
such assignors or mortgagors respectively ; and if any of the Defts are
second incumbrancers on such shares, then that the excess of any of
the costs of the Defts of whose shares they are such second incum-
brancers, after providing for the costs of the first incumbrancers thereon,
ought "to be paid to such second incumbrancers respectively, in or
towards satisfaction of their costs, and that any surplus of such
assignors or mortgagors' costs ought to be paid to them ; but if the
costs of the assignors or mortgagors shall not be sufficient to pay the
costs of their assignees or mortgagees respectively in full, that the
residue of such assignees or mortgagees' costs ought to be paid to them
out of the shares of which they are such assignees, mortgagees, or
incumbrancers. Let out of the money to arise by the sale herein-
before directed the said costs be paid as follows : the costs of the Deft
B. as assignee or mortgagee of the share of A. to M., the solicitor of
the said Deft ; and if the same shall be more than sufficient to pay the
said costs of the Deft B. as such assignee. Let the excess be paid to M.,
the solicitor of the said — [mortgagor]. Eesidue to be divided into
fifteen parts, and paid or applied as follows, &c. Oreedy v. Lavender,
11 Beav. 417.
Costs to be raised by Mortgage — and, if necessary, by Sale.
. Declare that the costs of the Pit and Deft and — having liberty
to attend, &c., of this suit, including in the costs of the Defts any
costs, charges, and expenses properly incurred by them as executors,
&c., and also the costs of all parties of raising in manner hereinafter
directed the amount of such costs, are a charge upon the property,
subject to the trusts of the will of the testator S. B. Let it be referred
to the taxing master to tax the said costs. Let J. C. B. and W. A.,
the trustees of the will of the said testator, raise the said costs by
mortgage of a competent part of the trust estate, or if necessary of
the whole thereof, with the approbation of the judge, with liberty to
apply in chambers to have, the same raised by sale if necessary. And
if the said costs be raised by mortgage. Let the money to arise by
such mortgage be paid into court to the credit of this cause, C. v. B.
And Let, out of the moneys so to be raised, the said costs be paid as
follows [directions for payment to the solicitors of the parties]. And
in case the said costs be raised by mortgage. Let the Deft M. B, [the
tenant for life] keep down the interest on such mortgage. — Liberty to
apply. Cooper v. Blumfield (V.-C. H.), May 6, 1874.
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212 ADMINISTBATION.
Establishing Will.
As the claim of the creditor against real estate is paramount to the title both of
the heir and devisee, it is not necessary in a creditor's suit against real estate to
establish the will : GoodchiU v. Terrett, 5 Beav. 398.
And in such a suit the heir-at-law is not a necessary party: Bridges v.
Euxman, 16 Sim. 71, overruling Brown v. Weafherhy, 10 Sim. 125.
And in suits to execute the trusts of a will it shall not be necessary to make
the heir-at-law a party ; but the pit shall be at liberty to make the hoir-at-law a
party where he desires to have the will established against him : Cons. Ord. 7,
rule 1.
Where the heir admits the will the Court will establish it without declaring it
well proved : Seton, 228.
But the admission of a will in the separate answer of a married woman who
•was the heiress-at-law has been held insufficient to enable the Court to declare the
will established : Brown v. Hay ward, 1 Hare, 432.
It has not been the practice to establish wills of copyhold estates against the
heir-at-law; Archer v. Slater, 10 Sim. 624 ; 11 Sim. 507.
Although a will cannot, either before or after probate, be set aside in equity on
the ground that the will was obtained by fraud on the testator, yet where the
probate has been obtained by fraud on the next of kin, equity will interfere :
Williams on Executors, 523 ; Mitford, PI. 257, 4th ed. ; Bamesley v. Powell, 1 Ves.
119.
The rule is the same where a will has been proved in solemn form : QingeU v.
Home, 9 Sim. 539 ; Allen v. Macpherson, 1 H. L. C. 191, reversing S. C. 5 Beav.
469.
Where proceedings are taken under the Probate Act for proving a will relating
to real estate in solemn form, or for revoking the probate of a will on the ground
of invalidity, the heir and persons interested in the real estate must be cited : 20
& 21 Vict. c. 77, s. 61.
The Court of Probate now has jurisdiction to determine the validity of wills of
real estate : 20 & 21 Vict. c. 77, ss. 61-5.
And where the will has been proved in solemn form, or its validity otherwise
decided on by the decree of the Court of Probate, the probate copy of such will,
or the letters of administration with the will annexed, or an official copy, shall in
all Courts and in all suits and proceedings affecting real estate (except proceedings
by way of appeal or for the revocation of probate or administration) be received as
conclusive evidence of the validity of the will, in like manner as probate is
received in evidence in matters relating to personal estate : 20 & 21 Vict. o. 77,
B. 62.
In any action at law or suit in equity the probate or letters of administration,
or the stamped copy, will be sufficient evidence of a will of real estate, although
the same may not have been proved in solemn form and declared valid, unless
notice is given that the validity of the devise or other testamentary disposition
be disputed : 20 & 21 Vict. c. 77, s. 62.
Thus, unless the will has been proved in solemn form, and its validity declared
by decree or order so as fall within the 62nd section, it will still be necessary to
produce the original will, if notice of disputing the validity be given under the
64th section : Williams on Executors, 538.
If a will is a mixed will concerning both lands and goods, it must be proved
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ADMINISTRATION. 213
entirely in the Court of Probate. But the probate will not prejudice the heirs
unless they have been cited under the Probate Act : Williams on Executors, 538.
At law it was sufficient to examine one witness to prove a will, if he can prove
the due execution of it, unless it is impeached: Seton, 227, citing Peake's
Evidence, 401.
In equity, and as a general rule, in order to establish the will against the heir
all the witnesses must be examined : Booth v. Blundell, 19 Ves. 505, per Lord
Eldon.^
And the rule is the same in the trial of an issue devisavit vel non before a jury :
Pemberton v. Perriberton, 11 Ves. 53, subject to exceptions where one of the wit-
nesses is dead or out of the jurisdiction, and perhaps where the will is only par-
tially in question : S. C. ; see also Lord Carrington v. Payne, 5 Ves. 404, 411 ;
James v. Parnell, T. & R. 417 ; McKenzie v. Eraser, 9 Ves. 5.
Where in a suit to establish a will one of the witnesses was proved to be abroad,
but his handwriting was proved, and the execution of the will proved by the other
witness, the Court would not declare the will well proved, but the evidence was
entered as read, and the trusts of the will directed to be carried into execution :
Eare v. Hare, 5 Beav. 629 ; 7 Jur. 336.
And where all the witnesses cannot be examined, but the Court is satisfied as
to the execution of the will, the decree will not declare the will well proved, but
will direct the trusts to be performed : Bi'nfield v. Lambert, 1 Dick. 337.
In order to establish a will against the heir-at-law, the sanity of the testator
must be proved : Harris v. Ingleden, 3 P. Wms. 93 ; Wdllis v. Hodgson, 2 Atk.
56 ; 1 Russ. 527.
The Coui't has established a will without production of the original, where cir-
cumstances have rendered the production of the original impossible, and where
strict proof of execution and attestation have been given : Ellis v. Medlicott,
4 Beav. 144 ; Band v. Macmahon, 12 Sim. 533, 566 ; 6 Jur. 450.
A mere legal devisee might file his bill against an heir-at-law for the pui-pose of
establishing the will against him, although no trusts are declared by the will, and
although it is not necessary to administer the estate under the direction of the
Court : Boyse v. Bossborough, 3 De G. M. & G. 817 ; 18 Jur. 205 ; 6 H. L. C. 1.
The Court has no authority to direct an issue devisavit vel non, unless the heir-
at-law disputes or does not admit the will ; Whitaker v. Newman, 7 Jur. 231.
Wills thirty years old prove themselves ; Man v. Bicketts, 7 Beav. 93, 101 ;
Orange v. Pick/ord, 4 Jur. (N.S.) 649.
The Court of Chancery will on a proper occasion order, upon motion, that the
original will be delivered out of the registry to the solicitor or agent of the parties
proposing to establish it upon giving security : Williams on Executors ; Morse v.
Boach, 1 Dick. 65 ; Frederick v. Aynscomb, 1 Atk. 627.
Actions for Administkation.
" Sub-section 1 of clause 25 of the principal Act is hereby repealed, and instead
thereof the following enactment shall take effect ; (that is to say) in the admi-
nistration by the Court of the assets of any person who may die after the com-
mencement of this Act, and whose estate may prove to be insufficient for the
payment of its debts and liabilities and the costs of winding up, the same rules
shall prevail and be observed as to the respective rights of secured and unsecured
creditors, and as to debts and liabilities provable, and as to the valuation of annui-
ties and future and contingent liabilities respectively as may be in force for the
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214 ADMINISTEATION.
time being under tlie law of bankruptcy with respect to the estates of persons
adjudged bankrupt ; and all persons who in any such case would be entitled to
prove for and receive dividends out of the estate of any such deceased person, or
out of the assets of any such company, may come in imder the decree or order
for the administration of such estate, or under the winding-up of such company,
and make such claims against the same as they may respectively be entitled to
by virtue of this Act " : The Judicature Act, 1875 (38 & 39 Vict. c. 77), sect. 10.
A creditor may institute proceedings for payment of his own debt alqfie, and
in such suit no general accoimt of debts was usually directed, but only an account
of the personal estate, and that particular debt which is ordered to be paid in a
course of administration : Att.-Gen. v. Cornthwaite, 2 Cox, 44 ; Morrice v. Bank
of England, Oas. t. Tal. 217 ; Anon., 3 Atk. 572.
The Court had power in such suits to make a decree as upon a general
creditor's bill: Martin v. Martin, 1 Ves. 213 ; Sheppard v. Kent, 2 Vern. 435 ;
Anon., 3 Atk. 572 ; Ferry v. Philips, 10 Ves. 38 ; Story, vol. i., p. 546.
But the usual course has been for the creditor to institute proceedings on
behalf of himself and the other creditors : Be Sir Charles — , 3 P. Wms. 343 ;
Owens V. Dickinson, Cr. & P. 48.
Where the proceedings have been instituted by a creditor suing on behalf of
himself and the other creditors, if the executors or administrators admit assets the
pit is entitled to an order for payment of his own debt without a general
account : Woodgate v. Field, 2 Hare, 211 ; Story, vol. i., p. 547.
As soon as the decree to account is made, the executor or administrator was
entitled under the former practice to an injunction to restrain any creditor suing
him at law: Morrice v. Bank of England, Cas. t. Tal. 217 ; Martin v. Martin,
1 Ves. 211 ; Perry v. Philips, 10 Ves. 38.
But to prevent connivance between the executor or administrator and a
creditor, it has been common practice to grant an injunction only where the
answer or affidavit of the executor or administrator states the amount of assets,
and upon terms : Story, vol. i., p. 550 ; Oilpin v. Lady Southampton, 18 Ves. 469 ;
Lee V. Park, 1 Keen, 714.
Where there is a devise of real estate and bequest of specific legacies, the
personal estate not specifically bequeathed being insufficient for payment of the
specialty debts, the deficiency is contributed rateably by the specific le!;atees and
specific devisees : Silk v. Pryme, 1 Uick. 384 ; Tombs v. Boch, 2 Coll. 490 ;
Order, p. 203 ; Qervis v. Oervis, 14 Sim. 654, ovemdirg Cornewall v. Cornewall,
12 Sim. 298.
If unincumbered lands and incumbered lands are both specifically devised, but
expressly after the payment of all debts, they contribute proportionally in dis-
charge of the mortgage : Story, vol. i., p. 570 ; Carter v. Bamardiston, 1 P. Wms.
505 ; Sowell v. Price, 1 P. Wms. 291.
Where the personal assets are sufficient to pay all the debts and legacies and
other charges, the heir or devisee who has been compelled to pay any debt or in-
cumbrance of his ancestor or testator binding upon him, is entitled (unless there
be some other equity which repels the claim) to have the debt paid out of the
personal assets in preference to the residuary legatees or distributees : Story,
vol. i., p. 570.
Where the debt of the creditor is not satisfactorily proved at the hearing, the
cause has been directed to stand over, with liberty for the pit to bring an action :
Woodgate v. Field, 2 Hare 211, 217 ; Oreyson v. Booth, 5 Hare, 536.
Where the pit succeeded at law, and the debt might have been proved at the
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ADMINISTRATION. 215
hearing, the Court in malting a decree for payment of the debt with costs has
excluded the costs at law : Oregson v. Booth, 5 Hare, 536.
Where in taking an account it appears that the pit, the creditor, has been over-
paid, the Court has jurisdiction to order the pit to bring into Coiu't the sum over-
paid : Graves v. Wright, 2 D. & War. 77.
G-ENEEAL Administration — Parties.
" Any residuary legatee or next of kin may Without serving the remaining
residuary legatee or next of kin, have a decree for the administration of the
personal estate of a deceased person " : 15 & 16 Vict. c. 86, s. 42, rule 1.
" Any legatee interested in a legacy charged upon real estate, and any person
interested in the proceeds of real estate directed to be sold, may without serving
any other legatee or person interested in the proceeds of the estate, have a decree
for the administration of the estate of a deceased person " : 15 & 16 Vict. c. 86,
s. 42, rule 2.
" Any residuary devisee or heir may without serving any co-residuary devisee
or co-heir, have the like decree]" : 15 & 16 Vict. c. 86, s. 42, rule 3.
" Any one of several cestuis que trust under any deed or instniment may with-
out serving any other of such cestuis que trust, have a decree for the execution
of the trusts of the deed or instrument" : 15 & 16 Vict. c. 86, s. 42, rule 4.
In all cases of suits for the protection of property pending litigation, and in
all cases in the njtture of waste, one person may sue on behalf of himself and of
all persons having the same interest " : 15 & 16 Vict. c. 86, s. 42, rule 5.
" Any executor, administrator, or trustee may obtain a decree against any one
legatee, next of kin, or cestui que trust for the administration of the estate or the
execution of the trusts " : 15 & 16 Vict. c. 86, s. 42, rule 6.
Persons who under the practice previons to the 15 & 16 Vict. c. 86, were neces-
sary parties, are to be served with notice of the decree ; and after such notice
will be bound by the proceedings in the same manner as if they had been
originally made parties to the suit : 15 & 16 Vict. c. 86, s. 42, rule 8.
" In all suits concerning real or personal estate which is vested in trustees under
a will, settlement, or otherwise, such trustee shall represent the persons bene-
ficially interested under the trust, in the same manner and to the same extent as
the executore and administrators in suits concerning personal estate represent the
persons beneficially interested in such personal estate ; and in such cases it shall
not be necessary to make the parties beneficially interested under the trusts
parties ; but the Court may upon consideration of the matter, on the hearing, if
it shall so think fit, order such persons, or any of them, to be made parties ":
15 & 16 Vict. c. 86, s. 42, rule 9.
Subject to the provisions of the Judicature Acts, and the rules of Court under
them, the above-mentioned provisions are to be in force as to actions in the High
Court of Justice: Jud. Kules, Order 16, rule 11 ; ante, p. 9.
All persons may be joined as pits in whom the right to any relief claimed is
alleged to exist, whether jointly, severally, or in the alternative. And all persons
may be joined as defts against whom the right to any relief is alleged to exist,
whether jointly, severally, or in the alternative : Jud. Rules, Order 16, rules
1 and 3.
The legal personal representative of a testator has been held to be a necessary
party for the administration of the real and personal estate ; and that if not a
party, no decree can be made, although an executor de son tort and trustees of
real estate are before *^/5'ffWit/-^'?P5fiJfcyD^/?®' ^' ^" ^'' ^'^' ^^ ' ^^ *'^°
216 ADMINISTBATION.
Penny v. Watts, 2 Ph. 149 ; Beardmore v. Gregory, 2 H. & M. 491 ; Carey v.
mils, L. R. 15 Eq. 79 ; contra, Ooote v. Whitfington, L. K. 16 Bq. 534.
And in a general administration suit by one executor against another, the re-
maining executor, who had been merely served with notice of decree, has been held
a necessary party defendant : Latch v. Latch, L. E. 10 Ch. 464.
General Administeation at Chambers.
Jurisdiction — Evidence — Variations.
Any person claiming to be a creditor or a sijecific pecuniary or residuary legatee,
or the next of kin, or some or one of the next of kin of a deceased person, may
obtain an order for the administration of the personal estate of a deceased person :
15 & 16 Vict. c. 86, s. 45.
And any person claiming to be a creditor of any deceased person, or interested
under his will, may apply for an order at chambers for the administration of the
real estate of such deceased person, where the whole of such real estate is by devise
vested in trustees who are by will empowered to sell such real estate and autho-
rized to give receipts for the rents and profits and for the produce of the sale of
such real estate : 15 & 16 Vict. c. 86, s. 47.
See also the Judicature Act, 1873 (36 & 37 Vict. c. 56, s. 39) ; Jud. Enles,
Order 54, ante, p. 74.
Although not strictly within the words of sects. 45 and 47 of the 15 & 16 Vict,
c. 86, administration orders are granted on the application of persons claiming
under the persons mentioned in those sections : Dan. 5th ed. 1071; see also
Turner v. Beynoldson, L. B. 16 Eq. 37.
The administration decree at chambers is only intended to apply to the common
administration accounts ; Partington v. Reynolds, 4 Drew. 253.
And upon a common decree for an account a trustee or executor cannot be
held liable for the loss of money : Be Fryer, 3 K. & J. 317 ; see also Blakeley v.
Blakeley, 1 Jur. (N.S.) 368.
And where the question whether administration accounts should be taken
depends upon the validity, which is disputed, of a deed, an administration summons
was dismissed : Acaster v. Anderson, 19 Beav. 161.
The judge has no jurisdiction upon an administration summons to make a
decree directing an account for wilful default : Partington v. Beynolds, 4 Drew. 253 ;
Blakeley v. Blakeley, 1 Jur. (N.S.) 368 ; Be Fryer, 3 K. & J. 317.
Nor to vary or to add to the usual administration decree by directing an account
for wilful default : Partington v. Beynolds, 4 Drew. 253. The two decrees are essen-,
tially different in principle : Eodson v. Ball, 1 Ph. 177.
And upon an administration summons an executor cannot be charged upon an
admission of assets : Willshire's Estate, 8 W. R. 133.
The Court may upon the application of a cestui que trust make an order for
administration of personalty appointed by the will of a manied woman under a
power created by deed : Sewell v. Ashby, 3 De G. M. & G. 933 ; S. C. 17 Jur. 269 ;
but not where the power was contained in a will : Be Newberry, 10 W. R. 378.
Real estate may be administered at chambers where the devise is made subject
to the payment of debts, and the trust for sale may thereby be implied : Ogden v.
Lowry, 4 W. R. 156 ; Pigott v. Young, 7 W. R. 235.
And where the will only gives the executors a power to sell and give receipts,
without vesting the estate in them by devise : Colman v. Turner, L. R. 10 Eq.
230; 18 W. R^ 063.
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ADMINISTRATION. 217
So, too, where in the trust for sale there was a direction that a considerable
portion of the real estate should not he sold for a period of five years ; De la Salle
V. Moorat, L. E. 11 Eq. 8; 19 W. E. 88.
The Court has a discretionary power in granting administration at Chambers :
15 & 16 Vict. c. 86, s. 45, 47.
And where difficult questions are likely to arise the Court had refused to make
an order at chambers for administration : West v. Laing, 3 Drew. 331, 333 ; see
also Be Sampson, 14 W. R. 472.
The order at chambers for administration is made upon proof by afSdavit of
due service of the summons, or on the appearance in person or by his solicitor or
counsel of such executor or administrator, and upon proof by affidavit of such
other matters, if any, as the judge shall require : 15 & 16 Vict. c. 86, ss. 45, 47. .
The fact that the deft is the legal personal representative or trustee of the real
estate of the deceased person should be established by production of the probate
or letters of administration, or by other primary evidence of the grant: Dan.
5th ed. 1074.
Upon an ordinary decree in a creditor's suit the Court does not treat the decree as
conclusively establishing the pit's debt, and a new case may be made in chambers
and fresh evidence gone into : Gardell v. Eawke, L. R. 6 Eq. 464 ; see also Whitaker
V. Wright, 2 Hare, 310; Owem v. Dickenson, Cr. & Ph. 48, 56; Field v. Tit-
muss, 1 Sim. (N.S.) 218.
See Evidence genbballt, ante, p. 62.
The judge may make the usual order for the administration of the estate of the
deceased, with such variations, if any, as the circumstances of the case may
require : 15 & 16 Vict. o. 86, s. 45.
Where in the prosecution of the decree or order additional accounts or inquiries
are required, they may be directed by the judge : Cons. Ord. 35, rule 21 ; Mutter
v. Hudson, 2 Jur. (N.S.) 34 ; Be Delevante, 6 Jur. (N.S.) 118 ; see also Wadham
V. Bigg, 2 Dr. & Sm. 78.
Such additional accounts or inquiries must not be at variance with the principle
of the decree : Partington v. Beynolds, 4 Drew. 253 ; Ooope v. Carter, 2 De G. M.
& G. 298.
Marshalling.
The general principle of marshalling is that if one party has a lien on or interest
in two funds for a debt, and another party has a lien on or interest in one only of
the funds for another debt, the latter has a right in equity to compel the former
to resort to the other fund in the first instance, if necessary for satisfaction of the
claims of both parties, if it can be done without injustice to the creditor and to
the common debtor : Story, vol. i. p. 561 ; Qlifton v. Burt, 1 P. Wms. 678, and
note ; Lenoy v. Duke of Athol, 2 Atk. 446 ; Aldrich v. Cooper, 8 Ves. 388, 395 ;
Ex parte Kendall, 17 Ves. 520 ; Greenwood v. Taylor, 1 Russ. & My. 185, 187 ;
Owynne v. Edwards, 2 Russ. 289.
And if the creditor resorts to the fund upon which alone the other party has
any security, the Court will decree satisfaction pro tanto to the latter out of the
other fund : Aldrich v. Cooper, 8 Ves. 389, 394 ; Order, p. 205 ; Trumner v. Bayne,
9 Ves. 210, 211 ; Westfaling v. Westfaling, 3 Atk. 467 ; Order, p. 205.
So, too, where a mortgagee exhausts the personal estate, the simple contract
creditors will be allowed to stand in the place of the mortgagee as regards the real
estate : Wilson v. Fielding, 2 Vern. 763 ; Aldrich v. Cooper, supra.
And legatees are entitled to stand in the place of specialty creditors or mortgagee,
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218 ADMINISTRATION.
or devisee of mortgagee, against the real assets where the personalty has been
exhausted by the specialty creditors, mortgagee, or devisee of mortgagee : Aldrich
V. Cooper, supra ; Selby v. Selhy, 4 Euss. 336 ; Norris v. Norris, 2 Dick. 542 ;
Clifton V. Burt, 1 P. Wms. 678, note.
And where legacies by will are charged upon real estate but not the legacies by
codicil, the former shall resort to the real assets upon a deficiency of the personal
assets to pay the whole : Hyde v. Byde, 3 Chan. Eep. 83, cited in Clifton v. Burt,
supra.
And the doctrine of marshalling does not depend upon assets only, although
technically the term is applied to assets only. A species of marshalling applies
where the parties are living : Lanoy v. DuTce of Athol, 2 Atk. 446 ; Aldrich v.
Cooper, per Lord Bldon, 8 Ves. 388.
The mortgagee who has two funds, as against the other specialty creditors, who
have but one fund, must resort first to the mortgage security, and can claim against
the common fund only what the mortgaged estate is deficient to pay : Greenwood
V. Taylor, 1 Kuss. & My. 185, 187.
And if A. has a mortgage upon two different estates for the same debt, and B.
has a mortgage upon one only of the estates for another debt, B. has a right to
throw A. in the first instance for satisfaction upon the security which he, B., can-
not touch : Story, vol i. p. 560 ; Greenwood v. Taylor, supra ; Barnes v. Rackster,
1 Y. & 0. 401 ; obs. of Lord Eldon in Aldrich v. Cooper, 8 Ves. 388 ; Averall v.
Wade, Lloyd & (Joold, 255.
But where there are several incumbrancers the Court will not, as between the
first and second mortgagees and a third incumbrancer, marshal the securitiesiso as
to benefit the second incumbrancer and prejudice the third incumbrancer : Barnes
V. Bacster, 1 Y. & C. 404 ; Order, p. 205.
Where, therefore, A. having two estates mortgages both to B., then one to C,
then both again to B., and then both to D., the Court will not, as between 0. and
D., marshal the securities by directing B. to take his full payment out of one
estate, so as to leave C. the first incumbrancer on the other estate, but B.'s debt
must be thrown rateably on both estates : S. C.
And in the election of securities such an election must bemade as will not
prejudice any other persons than the representatives of the debtor : S. C. ; Aldrich
V. Cooper, 8 Ves. 388.
The principle of marshalling applies also to the case of one judgment creditor
who has a right to go upon two funds, and another judgment creditor who has a
right upon one only of them, both belonging to the same debtor: Story, vol. i.
p. 561 ; Averall v. Wade, Lloyd & Goold, 264.
So, too, in the case of suretyship, the surety paying the debt may be given the
benefit of any securities given to the creditor : Aldrich v. Cooper, supra ; Ex
parte Rushforth, 10 Ves. 410, 414; Parsons v. Ruddock, 2 Vern. 608 ; Ex parte
Kendall, 17 Ves. 520.
Where the personal estate is insufficient for the payment of debts and lega-
cies, the residuary legatee contributes rateably as well as the pecuniary legatees :
Eensman v. Fryer, L. R. 3 Clji. 420, overraling S. C, L. R. 2 Bq. 627 ; Order, p. 204.
A residuary devise of real estate remains specific, notwithstanding the 24th
section of the Wills Act : S. C.
And where the personal estate is insufficient for the payment of the debts the
specific devisee must contribute rateably with the residuary devisee : Lancefield v.
Iggulden, L. E. 10 Oh. 136.
Where a testator gave certain charitable legacies, and directed that they should
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ADMINISTRATION. 219
be paid out of Ws pure personalty, those legatees are entitled to be paid out of the
pure personalty in preference to the other legatees ; but in such case the debts of
the testator and general administration charges are first payable out of the pure
and impure personalty rateably ; Beaumont v. OUveira, L. E. 4 Ch. 310, 319 ;
overruling S. C, L. E. 6 Eq. 534 ; Order p. 230.
Where a testator, domiciled in England, died possessed of personal estate and
of real estate in Scotland which descended to the Scotch heir, in an administration
suit it was held that the liability of the Scotch real estate to the payment of the
debts, as between the heir and pecuniary legatees, must be determined by the
law of Scotland : Harrison v. Barriaon, L. E. 8 Ch. 342.
Where the law of Scotland throws the general debts primarily on the personal
estate, there is no marshalling in the English Court against the Scotch heir in
favour of the pecuniary legatees : S. C.
Specialty and Simple Contract Debts.
In the administration of the estate of every person who shall die on or after the
1st of January, 1870, no debt or liability of such person shall be entitled to any
priority or preference by reason merely that the same is secured by or arises under
a bond, deed, or other instrument under seal, or is otherwise made or constituted a
specialty debt ; but all the creditors of such person, as well specialty as simple
contract, shall be treated as standing in equal degree, and be paid accordingly out
of the assets of such deceased person, whether such assets are legal or equitable,
;my statute or other law to the contrary notwithstanding : Provided that this Act
shall not prejudice or affect any lien, charge, or other security which any creditor
may hold or be entitled to for the payment of his debt : 32 & 33 Vict. c. 46.
Legacy and Succession Duty.
Whenever any suit is pending in any Court for the administration of any pro-
lierty chargeable with duty under the Succession or Legacy Duty Acts, the Court
is to provide out of any property which may be in its possession or control, for
the payment of duty to the Commissioners : 16 & 17 Vict. c. 51, s. 53.
" Every order du-ecting the payment of money, or the transfer or delivery of
securities in Couit, in respect of which duty shall be payable to the revenue under
the Acts relating to legacy or succession duty, shall, unless such order expressly
provides for the payment of the duty, also direct the Chancery Paymsister to have
regard to the circumstance that such duty is payable ; atid when by an order
money or securities in respect of which such duty may be chargeable are directed
to be invested, carried over, or placed to a separate account, the words ' subject
to legacy duty,' or ' subject to succession duty,' as the case may be, shall be
added in the order to the title of the account thereby directed to be raised.
Every order providing for payment out of money or the proceeds of securities in
Court of any duty payable under the Acts relating to legacy or succession duty
shall direct that the amount of such duty shall, upon the requisition of the Com-
missioners of Inland Revenue, be transferred to the account of Inland Revenue at
the Bank " : Chancery Funds Eules, 1874, r. 14.
Where the amount of the duty is small it is sometimes ordered to be paid to
the soUcitor on his undertaking to ap[)ly it.
If a fund is paid out of Court without providing for duty which is chargeable
upon it, the person chargeable may, upon the application of the Attorney-General,
be ordered to pay the amount : Bryan v. Mansion (b. C), 3 Jur. (N.S.) 473.
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220 ADMINISTRATION.
Interest on Debts and Legacies.
"Where a decree or order is made directing an account of the debts of a
deceased person, unless otherwise ordered interest shall he computed on such
debts, as to such of them as carry interest, after the rate they respectively carry,
and as to all others after the rate of £4 per cent, per annum from the date of the
decree or order " : Cons. Ord. 42, rule 9.
" A creditor whose debt does not carry interest, who comes in and establishes
the same before the judges in chambers under a decree or order of the Court or of
the judge in chambers, shall be entitled to interest upon his debt at the rate of
£4 per cent, per annum from the date of the decree or order, out of any assets
which may remain after satisfying the costs of the suit, the debts established,
and the interest of such debts as by law carry interest " : Cons. Ord. 42, rule 10.
All judgment debts carry interest at the rate of £4 per cent, per annum from
the time of entering up the judgment : 1 & 2 Vict. c. 110.
As to allowance for interest on the arrears of annuities : See Dan. 5th ed. 1104,
and cases there cited.
" Where a decree or order is made directing an account of legacies, interest shall
be computed on such legacies after the rate of £4 per cent, per annum from the
end of one year after the testator's death, unless otherwise ordered, or unless any
other time of payment or rate of interest is directed by the will, and in that case
according to the will" : Cons. Ord. 42, rule 11.
In the case of legacies charged upon or directed to be raised out of the rents and
profits of real estate or by mortgage interest is chargeable from the death of the
testator : Pearson v. Pearson, 1 Sch. & Lef. 10 ; Spurway v. Glynn, 9 Ves. 483 ;
Shirt V. Westly, 16 Ves. 393.
Where real estates are devised upon trust for sale, and out of the proceeds to pay
legacies, interest is payable from the period of a year after the testator's death :
Turner v. BucTc, L. E. 18 Bq. 301.
Appoetionment of Income — Appoetionment Act, 1870.
" All rents, annuities, dividends, and other periodical payments in the nature of
income (whether reserved or made payable under an instrument in writing or
otherwise) shall, like interest on money lent, be considered as accruing from day
to day, and shall be apportionable in respect of time accordingly ": 33 & 34 Vict.
0. 35, s. 2.
The word " rents " includes rent-service, rent-charge, and rent-seek, and also
tithes and all periodical payments or renderings in lieu of or in the nature of rent
or tithe.
The word " annuities " includes salaries and premiums.
The word " dividends " includes (besides dividends strictly so called) all pay-
ments made by the name of dividend, bonus, or otherwise, out of the revenue of
trading or other public companies, divisible between all or any of the members of
such respective companies, whether such payments shall be usually made at any
fixed time or otherwise : 33 & 34 Vict. c. 35, s. 5.
The income arising from personalty specifically bequeathed has in certain cases
been held not apportionable under the Apportionment Act, 1870, as between the
specific legatee and the estiite of the testator : Whitehead v. Whitehead, L. R.
16 Eq. 528 ; Jones v. Ogle, L. R. 8 Oh. 192. But as a general rule a specific
devise or bequest appears to be apportionable : Capron v. Oapron, L. R. 17 Eq.
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ADMINISTRATION. 221
288 ; Pollooh v. Pdlook, L. R. 18 Eq. 329 ; Earduck v. Pedley, L. R. 19 Eq.
271.
The apportioned part of any such rent, annuity, dividend, or other payment
shall be payable or recoverable in the case of a continuing rent, annuity, or other
such payment, when the entire portion of which such apportioned part shall form
part shall become due and payable, and not before, and in the case of a rent,
annuity, or' other such payment determined by re-entry, death, or otherwise,
when the next entire portion of the same would have been payable if the same
had not so determined, and not before : 33 & 34 Vict. c. 35, s. 3.
Ne Exeat in Administration Suit.
A ne exeat may be obtained against a deft ordered to pay money in an adminis-
tration suit, upon evidence that he is about to leave the country before the day
of payment has arrived : Sohey v. Sdbey, L. R. 15 Eq, 200.
Account between Tenant foe Life and Eemaindeeman.
In adjusting the accounts of a testator's estate between tenant for life and re-
mainderman the debts and legacies are to be taken as having been paid, not out
of capital only, but with such portion of that capital as, together with the income
of that portion for one year, is sufficient for the purpose : Allhusen v. Whittell^
L. R. 4 Eq. 293.
And the rule is not affected by the circumstance that the debts and legacies
have been paid before the expiration of a year from testator's death : Lambert v.
Lambert, L. R. 16 Eq. 320.
Outstanding Estate.
"Every decree or order for an account of the personal estate of a testator or in-
testate shall contain a direction for an inquiry what parts (if any) of such
personal estate are outstanding or undisposed of, unless the Court shall other-
wise direct : Cons. Ord. 23, rule 14.
DOMICIL.
The domicil of every individual as soon as he is born is the domicil of his
father if the child be legitimate, and the domicil of the mother if illegitimate.
This is the domicil of origin. Other domioils, including domicil by operation of
law, as on marriage, are domicils of choice : Udny v. Udny, 1 H. L., Sc. 441.
Domicil of choice is a conclusion or inference which the law derives from the fact
of a man fixing voluntarily his sole or chief residence in a particular place, with an
intention of continuing to reside there for an unlimited time : S. C. See also
Haldane v. Echford, L. R. 8 Eq. 631, 640.
The evidence must be stronger to shew abandonment of original domicil than
to shew retention of original domicil : Lord v Colvin, 4 Dr. 366 ; Whicker v. Rvnm,
7 H. L. C. 124.
And to establish a change of domicil of origin it is necessary to shew that the
person whose domicil is in question intended to change his domicil as distin-
guished from his nationality and allegiance : Moorhouse v. Lmd, 10 H. L. C.
272.
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222 ADMINISTRATION.
But an intention to change the civil status has been held unnecessary : L. E.
12 Bq. 617.
In order to effect a change of domicil it is sufficient that there should be a
change of residence of a permanent character voluntarily assumed : Ealdane v.
Echford, L. R. 8 Eq. 631.
The intention required to effect a change of domicil (as distinguished from the
acts embodying it) is an intention to settle in a new country as a permanent
home : Douglas v. Douglas, L. R. 12 Bq. 617.
But the residence must be freely chosen, and not prescribed or dictated by any
external necessity, and it must be residence fixed, not for a limited period or
particular purpose, but generally, and indefinite in its future contemplation
Udny V. Udny, 1 H. L., Sc. 441.
A man cannot, at least with reference to the law of succession to personal
estate, have two domioils : Somerville v. Somerville, 4 Ves. 749 ; Forbes v. Forbes,
Kay, 341.
The domicil of an infant cannot be changed by his own act : Forbes v. Forbes,
Kay, 341, 353.
An acquired domicil is not lost by mere abandonment, but continues until a
subsequent domicil is acquired : Munroe v. Douglas, 5 Madd. 379.
And the strongest intention of abandoning a domicil, and actual abandonment
of residence, will not deprive a man of that domicil, unless he has acquired
another : Forbes v. Forbes, Kay, 341.
The determination of a man's domicil is not affected by the circumstance that
the choice of residence had been made in deference to the wishes of his wife:
Aitchison v. Dixon, L. E. 10 Bq. 589.
Costs out of Estate.
Generally, wherever an estate or fund is administered by the Court, the costs
of all necessary and proper parties are the first charge : Bare v. Rose, 8 Ves. 558 ;
Ford V. Lord Ghesterfield, 21 Beav. 426; Barnwell v. Iremonger, 1 Dr. &
Sm. 255.
Trustees, executors, and administrators are entitled to their costs out of the
estate, except in cases of misconduct or vexatious conduct : Ourteis v. Candler,
6 Mad. 123 ; Poole v. Pass, 1 Beav. 600 ; Eolford v. PUpps, 3 Beav. 434, 440 ;
4 Beav. 474 ; Whitmarsh v. Robertson, 6 Jur. 921 ; Noble v. Meymott, 14 Beav.
471 ; King v. King, 1 De G. & J. 663 ; Farington v. Parker, L. E. 4 Bq. 316.
If trustees or persons holding a fiduciary position sever in the institution of pro-
ceedings or in their defence, they will only be entitled, except imder special
circumstances, to one set of costs : Farr v. Sheriff, 4 Hare, 528 ; 10 Jur. 630 ;
Hughes v. Key, 20 Beav. 395 ; Snoiu'v. Teed, L. E. 9 Bq. 622.
Where the trustees have not joined in instituting the proceedings, and the pit's
costs, independently of the question of severance, have been properly incurred,
the costs of the deft trustee, if he o^ght to have been made a co-pit, are deducted
from the pit's costs ; and that if the deft trustee has refused to join as a co-pit,
his costs should be deducted : Dan. 5th ed. 1274 ; Hughes v. Key, 20 Beav. 395.
Where a trustee ought to have paid the fund into Court under the Trustee
Eelief Act, he will only be allowed such costs as he would have been entitled to
if the fund had been so paid in : Wells v. Malbon, 31 Beav. 48 ; 8 Jur. (N.S.) 249 ;
Gunnell v. Wliite, 18 W. E. 883.
If trustees or persons holding a fiduciary position by their neglect or mis-
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ADMINISTRATION. 223
conduct occasion the proceedings, they will not be entitled to costs out of the
estate : England v. Dmvnes, 6 Beav. 279 ; Gockroft v. SuicUffe, 2 Jur. (N.S.) 323 ;
Fyfe V. Arhuthnot, 3 Jur. (N.S.) 651 ; Simpson v. Bathurst, L. E. 5 Ch. 193.
But mere neglect of duty, such as the omission to remit balances, if unaccom-
panied by fraud, does not disentitle them to the general costs of suit, although it
may subject them to the costs of so much of the suit as was occasioned by their
neglect : Dan. 5th ed. 1277, n., and cases cited.
Where proceedings are instituted either by creditors or legatees for a general
administration, the personal representatives of the testator or intestate are en-
titled to their costs out of the estate. And even where the assets are insufficient
for the payment of the debts, the costs constitute the first charge upon the fund
arising from the personal estate : Oaunt v. Taylor, 2 Hare, 413, 420 ; OtUey v.
Oilby, 8 Beav. 602 ; Tanner v. Dancey, 9 Beav. 339, 342 ; Stevens v. Pillen,
12 Jur. 282.
But in proceedings by a creditor against a personal representative for payment
of that creditor's debt only, the Court makes no order for payment of the costs of
the personal representative, although, if the creditor succeeds, the payment of his
debt as well as his costs will be ordered out of the estate.
Where a suit for administration has been properly instituted, the coats of the
pit and all necessary parties ai-e considered as expenses in administering the
estate, and are a first charge upon it : Dan. 5th ed. 1286 ; Loomes v. Stotherd,
1 S. & S. 458 ; Larhins v. Paxton, 2 My. &, K. 320 ; Barher v. Wardle, 2 My.
& K. 818.
If the estate is insufficient for the payment of all the costs, the executor's costs
are first payable ; then the pit's ; and then those of the other parties : Tipping v.
Power, 1 Hare, 405, 411 ; 6 Jur. 434 ; Tanner v. Dancey, 9 Beav. 339.
In suits by a creditor on behalf of himself and other creditors, if the estate
proves insufficient, the pit is entitled to his costs as between solicitor and client :
Sutton V. Doggett, 3 Beav. 9 ; Brodie v. Bolton, 3 My. & K. 168 ; Stanton
v. Hatfield, 1 Keen, 358, 362 ; Thomas v. Jones, 1 Dr. & Sm. 134; 6 Jur. (N.S.)
391 ; see also Larhins v. Paxton, 2 My. & K. 320.
So, too, in suits by a legatee, where the estate is sufiioient to pay the debts, but
insufficient to pay the legacies in full : Gross v. Kennington, 11 Beav. 89 ;
Waldron v. Francis, 10 Hare, App. 10 ; Thomas v. Jones, 1 Dr. & Sm. 134 ;
6 Jur. (N.S.) 391 ; Burrell v. Smith, L. E. 9 Eq. 443.
Where there was no personalty, and the suit had been instituted by creditors
to administer the realty, which proved deficient, the costs of all parties taxed as
between party and party were directed to be paid pari passu out of the fund ; the
balance then remaining to be applied in payment of the pit's extra costs as
between solicitor and client ; and then in payment of debts : ffenderson v. Dobbs,
L. E. 2 Eq. 532; Dan. 5th ed. 1301.
Where the pit's claim fails, or the estate is exhausted by prior demands, so
that he does not obtain payment of his demand, he is nevertheless entitled to his
costs if the Court has been enabled to administer the estate through his exertions :
Wedgwood v. Adams, 8 Beav. 103,
But where a person claiming as legatee fails to establish his claim, he will not
in general be allowed his costs out of the estate : Dan. 5th ed, 1289 ; Lynn v,
Beaver, T. & E. 63, 69 ; Lee v. Bdane, 4 De G. & Sm. 1, 6 ; 14 Jur. 861 ; see
also Lee v. Brown, 4 Ves. 362, 369 ; Ottley v. OUby, 8 Beav. 602 ; Thompson v,
Olive, 11 Beav. 475.
Where any doubt arises with reference to any bequest or devise which has
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224 ADMINISTRATION.
occasioned the proceedings, the costs of suit are usually paid out of the residuary-
personal estate: Nisbet v. Murray, 5 Ves. 149, 158; Wilson v. Brownsvnck,
9 Ves. 180 ; Wilson v. Squire, 13 Sim. 212 ; Ecmdley v. Bavies, 5 Jur. (N.S.)
190 ; Wilkinson v. Lindgren, L. R. 5 Ch. 570.
And this is the rule although the testator charges his debts and testamentary
expenses upon a specific fund : Browne v. Oroonibridge, 4 Madd. 495, 502 ;
Linley v. Taylor, 1 Griflf. 67 ; Stringer v. Harper, 26 Beav. 585 ; 5 Jur. (N.S.) 401.
But where a specific part of a testator's property was charged with his debts in
exoneration of the residue, the costs of the suit were held payable out of the part
charged : Morrell v. Fisher, 4 De Gr. & Sm. 422 ; see also Wilsmi v. Eeaton, 11
Beav. 492.
So, too, where a specific part was charged with the debts and the costs of exe-
cuting the trusts of the will : Alsop v. Bell, 24 Beav. 451 ; Webb v. Be Beavr-
voisin, 9 Jur. (N.S.) 369 ; 11 W. R. 132.
Where the costs of suit are payable out of the general residue, no distinction
exists between the cases in which it is disposed of and those in which it is not :
Eyre v. Marsden, 4 My. & Or. 244 ; Nisbett v. Murray, 5 Ves. 149 ; Souse v.
Chapman, 4 Ves. 542 ; Barton v. Cooh, 5 Ves. 461.
Where a testator devised the whole of his real estate to trustees upon trusts,
some of which were void for remoteness, and the will contained no residuary
devise, the personalty being insufficient, the costs were, as between the heir and
devisee, ordered to be borne primarily by the real estate descended : Eow v. Row,
L. B. 7 Eq. 414.
In the latter case, the whole estate being vested in trustees and the costs of
suit being costs incurred in the execution of the trusts, the rights of the heir-at-
law were not such rights as would attach to an heir having a clear legal estate :
see observations of V.-O. J. in S. 0. 417.
Where a particular fund has been severed from the residue, and the question is
simply between persons claiming it, the costs come out of that fund : Jenour v.
Jenour, 10 Ves. 562, 573 ; Wilson v. Squire, 13 Sim. 212 ; Dugdale v. Dv,gdah,
12 Beav. 247, 251 ; Governesses Institution v. Busbridger, 18 Beav. 467 ;
Bichardson v. Busbridger, 20 Beav. 136.
Where real and personal estates ai-e administered in one suit, the costs may be
apportioned between the two estates : Jones v. , Mitchell, I S. & S. 290, 295 ;
Dixon V. Dawson, 2 S. & S. 327, 340 ; Bennett v. Foster, 7 Beav. 540, 544 ;
Johnston v. Todd; 8 Beav. 489, 492 ; Eopkinson v. Mlis, 10 Beav. 169, 176.
And they may be apportioned between appointed and unappointed parts of a
fund : Trollope v. Boutledge, 1 De G. & Sm. 662, 671 ; Warren v. Postlethwaite, 2
Coll. 116, 123.
By consent the Court has made orders charging the costs of an administration
suit on the real estate, and directing a sale : Thackeray v. Barker, 1 New Hep.
567 ; Coventry v. Coventry, 34 Beav. 572 ; Fleming v. Armstrong, 34 Beav. 109 ;
Cox V. Cox, 3 K. & J. 554.
But the Court has no jurisdiction to charge such costs on the property being
administered against the wish of a beneficiary who offers to pay his share of those
costs : Lees v. Lees, L. R. 15 Eq. 151.
In an administration suit by a mortgagee who has obtained an order for sale for
payment of his debt, the executors of the testator have been given their costs,
charges, and expenses in priority to the pit's costs : Re Spensby's Estate, L. R, 15
Bq. 16 ; see also Wetenhall v. Davis, 33 Beav. 285. But see contra Cook v.
Hart, L. R. 12 Eq. 459, 463; Pinchard v. Fellows, h. R. 17 Eq. 421.
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ADMINISTRATION. 225
In an administration suit by a legatee, others in the same class served with
notice of the decree and attending the proceedings are not, except under special
circumstances, allowed their costs of attending : Be Taylor's Estate, L. E. 1 Eq.
495 ; Armstrong v. Armstrong, L. R. 12 Eq. 614.
A direction in the will of a testator to pay testamentary expenses and debts,
includes the costs of an administration suit : Harloe v. Sarlof, L. E. 20 Eq. 471 ;
Miles v. Harrison, L. R. 9 Ch. 316.
Costs of Incumbered Shares.
Where parties entitled to a share in an estate being administered have incum-
bered such share, they and their incumbrancers will only be entitled to one set
of costs between them out of the estate, and the extra costs will be thrown upon
the share itself: Greedy v. Lavender, 11 Beav. 417, 420 ; Order, p. 210 ; Remnant
V. Hood, 27 Beav. 613 : Ward v. Tates, 1 Dr. & Sm. 80.
And in such case the costs of the mortgagors which are payable out of the
estate will, if necessary, be ordered to be paid to the incumbrancers in order of
priority : S. C. ; Perceval v. Perceval, L. E. 9 Eq. 386, 394.
County Court Jurisdiction.
The County Courts held under the Act 9 & 10 Vict. c. 95, are to exercise all
the power and authority of the Court of Chancery (J,nter alia) : 1. In all suits
by creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether
in trust or otherwise), heirs-at-law, or next of kin, in which the personal or real,
o r personal and real, estate against or for an account or administration of which
the demand may be made shall not exceed in amount or value the sum of £500.
2. In all suits for the execution of trusts in which the trust estate or fund shall
not exceed in amount or value the sum of £500 : 28 & 29 Vict. c. 99, g. 1.
The County Courts have power under this Act to entertain administration
suits instituted by the assignees and representatives of the persons enumerated in
those classes : Turner y. Reynoldson, L. B. 16 Eq. 37.
But the Acts conferring equitable jurisdiction on the County Courts do not
prohibit a pit from instituting proceedings in the Court of Chancery : Brown v.
Bye, L. B. 17 Eq. 343,
Any one of the Vice-Chancellors on application at Chambers may transfer the
same to the Court of Chancery upon such terms, if any, as to security for costs or
otherwise, as he may think fit : 28 & 29 Vict. c. 99, s. 2.
Where during the progress of any proceedings it appears that the subject
matter exceeds the limit in point of amount to which the jurisdiction of the
County Court extends, the validity of any order or decree made is not to be
affected, but the suit or matter is to be transferred to the Court of Chancery ; and
any party may apply that, notwithstanding such excess in the amount of such
limit, the suit or matter may be prosecuted in chambers : 28 & 29 Vict. c. 99,
. s. 9.
Proceedings for the administration of the assets of a deceased person are to be
taken in the County Court within the district of which the deceased person had
his last place of abode in England, or in which the executors or administrators of
any one of them shall have their or his place of abode : 28 & 29 Vict, c, 99,
s. 10.
Where any suit or proceeding shall be pending in the Court of Chancery which
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226 ADMINISTBATIOJr.
might have been commenced in a County Court, any party may apply at
chambers to have the same transferred to the County Court in which the pro-
ceedings might have been commenced : 30 & 31 Vict. c. 142, s. 8.
A transfer under 30 & 31 Vict. c. 142, s. 8, is matter for discretion of the
judge before whom the suit is pending, with which the Court of Appeal will not
interfere : lAnford v. Oudgeon, L. B. 6 Ch. 359.
" The provisions contained in the 5th, 7th, 8th, and 10th. sections of the County
Court Act, 1867 (30 & 31 Tict. o. 142), shall apply to all actions commenced or
pending in the said High Court of Justice, in which any relief is sought which
can be given in a County Court " : Judicature Act, 1873 (36 & 37 Vict. o. 66),
s. 67.
Charities.
Gifts to Charities — Preliminary Inquiries.
Accounts of testator's personalty. — Let an inquiry be made whether
any and vsrhat part of the testator's estate consisted of personal estate
invested on the security of land or connected vrith land, and whether
any and what parts thereof consisted of personal ^estate unconnected
with land, and what were the respective values thereof at the death
of the testator. Cahiert v, Sebright, 1847, A. 194 ; Seton, 331.
Similar Order.
Accounts of testator's personalty. — And in taking the said accounts
Let that part of the personal estate which consisted or now consists of
leasehold hereditaments, or of money secured upon mortgage, or upon
the deposit of title deeds, or in anywise connected with any interest
in real estate, be distinguished from that part of the testator's personal
estate which has been or now is in nowise connected with any interest
in real estate. Let an inquiry be made what was the value of such
part of the said personal estate as did not consist of money at the time
of the testator's death, and has not since been converted into money.
Williams v. Kershaw, 1835, B. 165 ; Seton, 331.
Preliminary Accounts of Personalty — Administration without prejudice to
validity of Charitable Bequests.
Inquieies as to parties and next of kin. — Accounts of testator's per-
sonalty.— Let an inquiry be made of what particulars the testator's
personal estate consisted at the time of his death, distinguishing such
parts thereof as have arisen from or are connected with land from the ■
other parts of his said personal estate. — Inqiiiry what were the values
of such respective parts of the testator's said personal estate at his
death. — Accounts of debts, funeral expenses, and legacies, and inquiry
what parts of personal estate are outstanding. — Let the testator's per-
sonal estate not specifically bequeathed be applied in payment of his
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ADMINISTRATION. 227
debts and funeral expenses in a due course of administration, and then
in payment of the legacies and annuities given by tis will, but sub-
ject and without prejudice to any questions whether any and which of
the charitable legacies given by the testator are Valid charitable be-
quests, and if so, whether the same or any of them may to any and
what extent be void under the statute 9 Geo. 2, c. 36, intituled, &c.,
and to the apportionment thereof.- Mumford v. Creswdl, 1860, B. 1631 j
Seton, 330.
Prelimi'mry Inquiry as to Charities referred to in Testator's Will.
Let an inquiry be made what are the institutions referred to in the
will of the testatrix F. M. as the Dominican convent at Carisbrook,
and the Sisters of Charity of St. Paul at Selley Oak, and whether they
are charitable institutions within the meaning of the Mortmain Act.
Gochs V. Manners (V.-G. W.), Nov. 5, 1870 ; cited_L. E. 12 Bq. 674.
Similar Order.
An inquiry whether there was any church answering the description
in the will of the testatrix M. M. of " an additional church at Aberyst-
with" being erected- or being about to be erected at the time of the
death of the testatrix. Sinnett v. Herbert (V.-C. B.), May 7, 1869.
Gifts declared void.
DecIiAjee that the charitable gifts contained in the will of the testator
A., or in the indenture dated, &c., so far as the same are payable out
of the testator's real estate or personal estate savouring of realty, are
null and void [or, that the bequest of £ — contained in the wiU of the
testator A. to — , to be applied, &c., is null and void], as being con-
trary to the statute passed in the ninth year of the reign of His late
Majesty King George the Second, intituled " An Act to restrain the
disposition of Lands whereby the same become unalienable."
Gift void — Objects indefinite.
Declare that the residuary bequest contained in the will and codicil
of J. v., otherwise V., the testator in the pleadings named, is void for
uncertainty. — Consequential directions. Vezey v. Jamson, 1 Sim. &
Stu. 69.
Gift void — Fever Hospital.
Declare that the gift to the Pit C. H. by S. D. the intestate of the
sum of £5000 to build a fever hospital, and the trusts of the fund:
declared by the Pits in and by the deed-poll of the 3rd of April,.
1866, being for the erection after the decease of the said S. D., and
Q 2
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228 ADMINISTRATION.
for the future maintenaTrce and support of a fever hospital at Chel-
tenham, are respectively void, as being contrary to the statute passed
in the ninth year of the reign of His late Majesty King George the
Second, intituled, &c. — Directions for taxation and payment of costs.
EawMm v. Allen, L. E. 10 Eq. 246.
Gift void as to Land — Chief Cleric's Certificate varied — Legacy to abate
in proportion which Realty and Personal Estate savouring of Realty
hear to pure Personalty.
It appearing from the chief clerk's certificate and the first schedule
thereto that the aggregate value at the time of the testatrix's death of
such parts of her personal estate as had arisen from or were connected
with land was the sum of £2448 15s. 5d., and that the aggregate value
at the same period of such parts of her personal estate as had not
arisen from and were not connected with land was the sum of
£9047 19«. 9d. ; and his Lordship being of opinion that in the said
sum of £2448 15«. 5d. three items were improperly included, viz., those
numbered respectively 1, 4, and 5, in the said schedule, the aggregate
value of which amounts to £634 2s. Id., and that such last-mentioned
sum should be subtracted from the said £2448 J6s. 5d., whereby the
same will be reduced to £1914 13«. 4(Z. and added to the said
£9047 19s. 9d., whereby the said £9047 19«. 9d. will be increased to
£9582 Is. lOd., Declare that the legacy of £3000 bequeathed by the
will of the said testatrix to the Deft K. and to the Pit upon trust tO'
be by them applied " in aid of an endowment for the Welsh church
now in the course of erection at Aberystwith " ought to abate to the
extent of £500, being the proportion, namely, one-sixth, which the
said sum of £1914 13s. 4d. bears to the whole of the personal estate set
forth in the first and second parts of the said schedule. — Trustees to-
be at liberty to retain the sum of £2500, the unabated proportion of
the said legacy of £3000 and interest at £4 per cent, from one year
after testatrix's death out of her estate, and to be applied subject to duty
upon the trusts declared of the said legacy. — Directions for taxation
and payment of costs and payment of general legacies out of fund
in Court. Sinnett v. Herbert, L. E. 7 Ch. 232, reversing Si C.,- L. E^
12Eq. 574.
Gifts, some void, some valid— repair of Monument, Vault, and
Stained Window, <&c.
Directions for transfer into Court of £640 Bank £3 per Cent. An-
nuities and for taxation and payment of costs. — Declare that the bequest
of £600 contained in the will or testamentary appointment of A. F. the
testatrix for keeping in good repair, order, and condition for ever th&
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ADMINISTEATION. 229
monument of the testatrix's mother in Hungerton Church, the vault
in Hungerton [churchyard] in which she is interred, and the orna-
mental painted window in Hungerton Church, is as to the said monu-
ment in Hungerton Church and the said ornamental painted window
in Hungerton Church a valid charitable bequest, but is as to the said
vault in Hungerton [churchyard] invalid and void. And the Court
being of opinion that the direction contained in the said will for the
application of the surplus of the dividends arising from the investment
of the said sum of £600 towards keeping in repair and ornamenting
the chancel of the said church is a valid charitable gift to the extent
of the surplus dividends arising from the investment of two-thirds of
the said £600, but void as to the dividends arising from the invest-
ment of one-third thereof. Let two-thirds of the residue of the said
Bank Annuities be carried over to the credit of the cause, " The Hun-
gerton Monument, Ornamental Painted Window, and Chancel Eepair
and Ornament Fund. — Directions for payment of income to the
minister and churchwardens of the parish of Hungerton, to be applied
in good repair, &c., of the monument and window, and any surplus to
be applied in ornamenting and repair of chancel. Hoare v. Oshorn,
L. E. 1 Eq. 585.
, Charitable Gifts, some void, some valid — Apportionment of Costs — Scheme.
Declare that the bequest of the £6200 contained in the will of the
testator to the Defts upon trust that they should place the same out
at interest on such mortgage security, &c., is void, as being within the
intent and meaning of the Act 9 Geo. 2, c. 36, intituled, &c. Declare
that the bequest of the residue of the testator's estate for charitable
purposes is void under the said Act so far as such residue consists of
any interest in land or money payable out of or secured on land.
Declare that the Hibernian mining shares and Anglo-Mexican mining
shares in the report mentioned are not such an interest in lands as that
the bequest thereof for charitable purposes is within the operation of
the said Act. Declare that the funeral and testamentary expenses,
debts, and legacies (except the £6200 legacy), and the costs of all
parties of this suit as between solicitor and client ought to be paid
Tpro rata out of the mixed personalty and pure personalty. — ^Eeference
to apportion the same accordingly. — Declare the Pits entitled as next
of kin to so much of the mixed personalty as shall remain after paying
its proportion of such funeral and testamentary expenses, debts, lega-
cies, and costs. — Tax and pay all parties their costs of suit. — Let a
scheme be approved for an application of so much of the pure per-
sonalty as shall remain after paying its proportion of such funeral and
testamentary expensegyjte^f ,J^o,i^jS,,^!^|jigts. Let the costs of and
230 ADMINISTEATION.
incident to such scheme be paid exclusively out of the pure personalty.
BaJcer v. Sutton, 1 Keen, 224, 234.
Declaration as to Charitable Bequests — Inquiry as to pure and impure
Personalty.
Declare that according to the true construction of the will of the
testator W. M. the leasehold property in the county of Kent belonging
to the testator in the fourth schedule to the chief clerk's certificate
mentioned, formed part of the residue of the personal estate. Declare
that the School for the Indigent Blind is not entitled to any share in
the leasehold estates of the testator, or the proceeds thereof. Declare
that the residue of the testator's pure personal estate is divisible,
subject to the direction hereinafter contained, in equal sevenths among
the following charities, &c. Let an inquiry be made how much of the
personal estate of the testator consisted at the death of the testator of
pure personalty, and how much of personalty savouring of realty,
having regard to the declaration herein contained, and what is the
value thereof respectively. Declare that the pecuniaiy legacies to the
said charities failed in the proportion that the personalty savouring of
realty bears to the whole personalty, &c. Chester v. Chester, Feb. 25,
]867, cited L. E. 12 Eq. 446.
Gifts to Societies for the advancement of Objects of public utility declared
charitable, and within the Mortmain Act — Costs and Administration
Charges payoMe out of the pure and impure Personal Estate.
Affiem so much of the order dated, &c., as declares that the five
several legacies of £4000 bequeathed to the respective treasurers for
the time being of the Eoyal Society, the Eoyal Geographical Society,
the Eoyal Humane Society, the Marylebone School for Grirls, and the
Albert Orphan Asylum, were given for charitable purposes within the
intent and meaning of the statute 9 Geo. 2, c. 36, and as declares that
the sum of £806 12s. 6^. in Court to the credit of the cause, being the
proceeds of the sale of the property at Madeira mentioned in the chief
clerk's certificate, and £15, being the rent which had been received in
respect of the said property since the death of the testator, were not
such an interest in land as that a bequest thereof for charitable pur-
poses was within the operation of the said Act. Vary the rest of the
said order, and instead thereof, Declare that the costs and funeral and
testamentary expenses and debts of the testator are payable rateably
out of the pure and impure personal estate, and the proceeds and rents
of the Madeira property ; and that, subject thereto, the said five legacies
of £4000 each, being charity legacies, are payable out of the testator's
pure personal estate in preference to his other legacies, and his other
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ADMINISTRATION. 231
legacies out of his impure personal estate, the charity legacies being
by law excluded from participation therein. And Declare that the
charity and other legacies so fax as they are not paid out of the pure
and impure personal estate as aforesaid ought to participate in the
proceeds and rents of the Madeira property ; but that in such par-
ticipation the charity legacies, so far as they are unpaid as aforesaid,
ought to abate in the proportion which the testator's impure personal
estate bears to the proceeds and rents of the Madeira estate. Becmmont
V. Olivdra, L. E. 4 Ch. 319 (Minute of Order),
Declaration thai whole Property is applicable to Charitable Purposes —
Acccmnf.
Declare that the whole of the rents in the information mentioned
are applicable for the purposes pointed out by the will of Thomas
Bussell the testator therein named, or to some other like charitable
purpose. Let an account be taken of the rents and profits of the charity
estates in the pleadings mentioned received by the Defts the Drapers'
Company since the filing of the information, or by any other persons or
person, &c. Let an inquiry be made of what the charity property
consists. Let a proper scheme for the future administration of the
charity and for the application of the income and funds which shall be
found due from the Defts be settled, &c. Let the Defts the company
pay to the solicitor of the informant his costs of suit, to be taxed, &c. —
Eeserve further consideration and subsequent costs. — Liberty to apply.
Att.-Oen. V. Drapers' Co., 2 Beav. 608.
Similar Decree — Payment into Qowrt — Aceovmt.
Declare that the messuage, tenement, mills, and appurtenances,
called, &c., and all other the lands and hereditaments in the informa-
tion in this cause mentioned, with the rents and profits thereof, are
applicable to, and ought to be applied to, and distributed and employed
for, the relief and maintenance of the poor people inhabiting^ within Bod-
min not receiving parochial relief, as in and by the indenture of the
18th May, 1624, in the pleadings mentioned and directed. — By consent of
the Attorney-General, Let the mayor, aldermen, and burgesses of the
borough of Bodmin pay the sum of £321, the balance of £400 received
as a fine on granting a lease into Court to the credit of the cause. —
Invest and accumulate. — Let an account be taken of the rents and
profits, &o., received by the Defts, or by any other person or persons, &c.,
in respect of the said premises since the filing of the information. — Let
proper persons be appointed trustees, and to administer the charity.
Let a proper scheme for the future management of the said property
and the due administration and application of the future rents and
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232 ADMINISTRATION.
profits of the said £321 when so paid into Court, and the interest
thereof when laid out, and of sums found due on the account of rents
be settled, &c. — Costs of Attorney-General to be taxed by the taxing-
master as between solicitor and client and paid by the Defts. — ^Liberty
to apply. Att.-Gen. v. Mayor of Bodmin (M. E.), July 7, 1840.
Decree on Information — Declaration that Income was not wholly given to
Charity — Apportionment of Surplus Bents.
Declare that according to the true construction of the wUl of the
testator forty undivided forty-seven parts of the rents and profits of
the estate in Gilden Morden were applicable, and ought to be applied to
and for the charitable intents and purposes in the said will declared
concerning the same, without any deduction therefrom for or in respect
of the necessary ordinary expenses of taxes and repairs, or the costs of
management of the said estate ; and that the remaining seven un-
divided forty-seven parts of the said rents and profits were applicable
and ought to be applied in the first place in payment of all necessary
ordinary expenses of taxes, repairs, and costs of management of the
whole estate, and subject thereto belonged to the Defts, the mayor,
aldermen, and burgesses of the town of Beverley, for their own use
and benefit. Declare that forty undivided forty-five parts of the rents
and profits of the estate at Over were applicable and ought to be ap-
plied to and for the charitable intents and purposes by the said will
declared concerning the same, without any deduction therefrom for or
in respect of the necessary ordinary expenses of taxes and repairs
or the costs of management of the said last-mentioned estate, and
that the remaining five undivided forty-five parts of the said last-
mentioned rents and profits were applicable and ought to be applied
in the first place in payment of all necessary ordinary expenses, taxes,
repairs, and costs of management of the whole of the said last mentioned
.estate, and subject thereto belonged to the said Defts the mayor,
aldermen, and burgeSses of the town of Beverley, for their own use
and benefit. Att.-Gen. v. Corporation of Beverley, 6 De G. M, & G. 256,
269 ; see also Att.-Oen. v. Drapers' Co., 2 Beav. 508.
Similar Dearee— Specific Annual Payments to Charity— Contrihution^An-
nual Payments for Bepairs— Surplus Bents to Corporation heneficiaUy.
Declake that accoi-ding to the true construction and efiect of the
instrument called the will of Sir A. J., the master, wardens, and com-
monalty of the mystery of Skinners of London became and now are
entitled for their own use and benefit to the rents and profits of such
of the messuages and premises devised by the said inetrument as con-
sist of the several particulars eet forth, &c., subject to the payment
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ADMINISTRATION. 233
thereout of such only of the several specific sums in the said will men-
tioned as hereinafter set forth, that is to say : 4s. to he paid weelsly to
the six almsmen at St. Helen's in manner and form as in the will is
directed ; the yearly sum of 10s. to the renter warden of the company ;
the annual sum of 25s. 4d. for coals to he distrihuted among the six
almsmen as in the will is directed ; and also subject to a contribution
towards the sum of £150, which has been annually allowed to the
Defts in taking their accounts in this cause for the expenses of visiting
the School at Tonbridge in times past, and also towards the sum of
£200 allowed for that purpose by the scheme for the establishment of
the school ; such contribution for repairs, and for the past and future
expense of visiting the school, to be apportioned and made according
to the relative anniial value of the said messuages and premises de-
mised by the instrument or will of Sir A. J., with the annual value
of the messuages and premises mentioned to have been purchased of
J. G. and J. T., such present annual values to be ascertained, &o. Ait.-
Gen. V. Skinners' Co., 2 Euss. 407, 447.
Lease declared void — Account — Occupation Bent — Costs.
Declare that the lease dated, &c., of the charity lands and premises
in the pleadings mentioned called, &c., is void, and decree the same
accordingly. Let the Defts deliver up the said lease to the relators,
W. G. M. and W. A., the churchwardens of the parish of — , to be can-
celled. Let the Defts deliver up possession of the said charity lands,
with the appurtenances, and all other the premises comprised in the
said lease, to the said W. G. M. and W. A., as such churchwardens
aforesaid. Let an account he taken of the rents of the said lands and
premises which have accrued since the — day of ^ — , and which have been
received by the Deft, or by any other person or persons, &c. And in
case it shall appear upon taking the said account that the said Defts, or
any or either of them, have been in the occupation of any part of the said
lands and premises since the — day of — , or if it cannot be ascer-
tained what rents have been, received in respect of such lands, the said
Defts are to be charged in taking the said account according to a
valuation to be set thereon, &o. ; and Let the Defts be charged there-
with accordingly. Let what shall he found due on. taking the said
account be paid by the said Defts toW. G. M. and.W. A., as such church-
wardens aforesaid. Let an inquiry be made whether the said Defts or
any of them have in their or any of their possession, custody, or
power, any and what deeds, documents, books, accounts, evidences, or
writings belonging to the said lands. Let the said Defts deliver the
same to the said churchwardens. Defts to pay to the relators their
costs of suit, to be taxed, &c. Att.-Gen. v. Lord Eotham, T. & E. 209,
220.
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234 ADMINISTRATION.
Similar Decree — Accounts — Lasting Improvements — Costs.
Declare that the indenture of lease dated, &c., in the pleadings men-
tioned is an improvident lease, and ought to be set aside, and order and
. decree the same accordingly. Let the following accounts and inquiries
be taken and made : — 1. An account of the rents and profits of such
part of the ohariiy property in the pleadings mentioned as was be-
queathed to the Deft J. from the — day of — ; and as to the other
Defts, an account of the rents and profits of the rest of the said
charity property received by them subsequent to the filing of the infor-
mation, or by any other person or persons, &c. 2. An inquiry of what
the said charity property consists. 3. An inquiry whether any and
what substantial improvements have been made to such part of the
charity property as was bequeathed to the Deft J. subsequent to the —
day of — , and whether any and what substantial improvements have
been made by any and which of the other Deft* subsequent to the filing
of the said information, to the residue of the said charity property, and
whether any and what sum or sums ought to be allowed in respect of
such improvements. — Costs of relators up to the decree to be taxed as
between solicitor and client, and paid out of first moneys belonging to
the charity which shall be received. — Liberty to apply. Att.-Gen. v.
Bmey, 19 Beav. 527.
Decree on Information — Leases to he made at Mack-rents — Renewal of
Leases — Past Outlay.
Declare that it will be fit and proper, and for the benefit of the
above-mentioned hospital, that the Defts, the master, company, brethren
and sisters of the said hospital, should not for the future let any of the
charity property on fines or for long terms, or otherwise than at the
best rents which can be procured. — Let an inquiry be made of what
the estates and property belonging to the said charity consist, and upon
what leases the same are let, and who is or are entitled to or interested
in such leases. Let a scheme be settled for the future admininistration
of the said charity and the application of the income thereof, having
regard to the aibove-mentioned declaration. — Continue until further
order injunction awarded against the Defts, the master, brethren, and
sisters, to restrain them until the hearing from granting any fresh
leases of the property of the said charity by way of renewal or otherwise
for lives, or upon fines, or for long terms of years, or otherwise than at
the best rent they can procure. — Let the order dated, &c., for the
maintenance of the objects of the charity be continued. But neither
the above declaration nor the said injunction is to extend to prevent
any renewal of leases which may be found to be necessary or proper
for the purpose of carrying this decree into effect; and in acting on
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ADMINISTRATION. 235
this provision regard is in the first instance to be had to the leases of
lessees other than the petitioners who may have expended money upon
the said estates upon the faith of their leases being renewable, and
Who may not have had sufficient enjoyment under their leases to
recompense them for the money so expended. — Further consideration
adjourned.— Liberty to apply. Att.-Gen. v. St. John's Hospitcd, L. K.
1 Ch. 92.
Marshalling — Direction to reserve Pure Personalty for Charity — Costs.
, Let, the order dated the 9th June, 1873, so far as the same declared
that the debts, funeral and testamentary expenses of the testator J. M.,
given or bequeathed, and directed to be invested as therein mentioned,
and the costs, charges, and expenses by the said order direbted to be
taxed and paid, were payable out of such portions of the testator's
personal estate as had arisen from or were otherwise connected with
any interest in land, and out of such portions of the said testator's
personal estate as were in nowise connected with any interest in
laud, pro rata according to the respective amounts and values of the
said respective portions of the testator's personal estate respectively,
and that the Defts, the executors of the will of the testator, should be
allowed in their accounts what they should so retain and pay as in the
said order directed, and that the said Defts should pay the ultimate
residue of any balance in their hands after such retainer and payment
thereout as aforesaid into Court, &c., be varied. And in lieu thereof,
Let the debts and funeral and testamentary expenses of the said
testator, and the several legacies and sums of money by the said will
and codicil given or bequeathed or directed to be invested as therein
mentioned, except the legacy of £100 to the Westmoreland Society
Schools, in the county of Surrey, and the costs, charges, and expenses
by the safd order directed to be taxed and paid, and the costs of the
Defts, the executors, hereby directed to be taxed and paid, be paid
out of such portions of the said testator's personal estate as have arisen
from or are otherwise connected with any interest in land in exonera-
tion of such portions of the said testator's personal estate as are in
nowise connected with any interest in land. And as to the said legacy
of £100 to the Westmoreland Society Schools, in the county of Surrey,
Declare that such proportion thereof as is payable out of such portions
of the personal estate of the testator as have arisen from or are other-
wise connected vrith any interest in land is void, as being contrary to
the statute 9 Geo. 2, c. 36, but that such proportion thereof as is pay-
able out of such portions of the personal estate of the testator as are
not in anywise connected With any interest in land is valid and payable
thereout in priority to the legacies given to the appellants and to the
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236 ADMINISTRATION.
Society for Promoting Christian Knowledge. And Let the same be
paid accordingly. — Appeal deposit to be repaid to the appellants. —
Directions for taxation of costs of all parties of the appeal. — Costs of
appellants to be paid out of such portions of the testator's personal
estate as are connected with any interest in land. — Costs of Defts, the
executors, out of such portions as have arisen from or are otherwise
connected with land, and the costs of the other Defts and other re-
spondents to be paid by the executors out of such portions of the
personal estate as have arisen from or are otherwise connected with
any interest in land. — Ultimate residue after such payment to be paid
into Court to the credit of the cause. Miles v. Harrison, L. E. 9 Ch.
316.
MoETMAia ACT, 9 Geo. 2, c. 36.
No manors, lands, tenements, rents, advowsons, or other hereditaments, cor-
poreal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels,
stocks in the public funds, securities for money, or any other personal estate
whatsoever to be laid out or disposed of in the purchase of any lands, tenements,
or hereditaments, shall be given, granted, aliened, limited, released, transferred,
assigned, or appointed, or any ways conveyed or settled to or upon any person or
persons, bodies politic or corporate, or otherwise, for any estate or interest what-
soever, or any ways charged or incumbered by any person or persons whatsoever,
in trust or for the benefit of any charitable uses whatsoever ; unless such gift,
conveyance, appointment, or settlement of any such lands, tenements, or here-
ditaments, sum or sums of money or personal estate (other than stocks in the
public funds), be and be made by deed, indented, sealed, and delivered in the
presence of two or more credible witnesses twelve calendar months at least
before the death of such donor or grantor (including the days of the execution
and death), and be inroUed in the High Court of Chancery within six calendar
months next after the execution thereof ; and unless such stocks be transferred
in the public books usually kept for the transfer of stocks six calendar months
at least before the death of such donor or grantor (including the days of the
transfer and death) ; and unless the same be made to take effect in possession for
the charitable use intended immediately from the making thereof, and be with-
out any power of revocation, reservation, trust, condition, limitation, clause, or
agreement whatsoever, for the benefit of the donor or grantor, or of any person or
persons claiming under him : 9 Geo. 2, c. 36.
The above provision is not to extend to purchases or transfers made for
valuable consideration : sect. 2.
Gifts, grants, conveyances, and transfers, &c., made contrary to the Act to
be absolutely void : sect. 3. But the Act not to extend to the two universities or
the colleges of Eton, Winchester, or Westminster : sect. 4.
The statute 43 Eliz. c. 4, commonly called the Statute of Charitable Uses, has
become obsolete : JEx parte Kirhhy Bavensworth Eospital, 15 Ves. 305. But
the recitals in the Act are still important, as the Court has reference to it iu
deciding what is to be deemed a charitable purpose : Dan. 5th ed. 1760 ; Ken-
dal V. Grainger, 6 Beav. 300, 302; Att.-Gen. v. Corporation, of Bhewsbury,
6 Beav. 220.
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ADMINISTRATION. 237
Charities excepted from Mortmain Act.
Many public charities and institutions have been excepted either wholly or
partially from the operation of the Act of 9 Geo. 2, c. 36 : — the Foundling
Hospital, ]J Geo. 2, o. 29 ; the British Museum, 26 Geo. 2, o. 22, s 14 ; 5 Geo. 4,
c. 39 ; the Bath Infirmary, 19 Geo. 3, c. 23 ; Queen Anne's Bounty, 43 Geo. 3,
c. 107 ; the Eoyal Naval Asylum, 51 Geo. 3, o. 105 ; Commissioners of Green-
wich Hospital, 10 Geo. 4, o. 25, s. 87 ; St. George's Hospital, 4 Will. 4, o. 38, ». 1
(local and personal Acts) ; Seaman's Hospital Society, 3 & 4 Will. 4, c. 9 ; Mu-
seums of Art and Science in large towns, 13 & 14 Will. 4, c. 65. See Tudor's
Charitable Trusts, 97.
By the custom of London, confirmed by Magna Charta, citizens and freemen
of London may devise in mortmain : 9 Hen. 3, c. 9 ; 8 Co. 129. But the custom
must be clearly confined to lands in the City of London : Tudor's Charitable
Trusts, 97, citing Middleton v. Cater, 4 Bro. C. C. 409.
Lands not exceeding five acres, or goods and chattels not exceeding £500, may
by deed inrolled or by will, under certain conditions, be given to promote the
building or repairing of churches, chapels, and houses for the residence of minis-
ters of the Church of England : 43 Geo. 3, c. 108.
Any person or body corporate may by deed inrolled under 22 Hen. 7, c. 16,
in the case of hereditaments (but without deed in the case of goods or chattels),
or by will, vest in the Ecclesiastical Commissioners the hereditaments, goods,
and chattels for the endowment or augmentation of the income of ministers or
perpetual curates of the Church of England : 6 & 7 Vict. c. 37.
Any person by will or otherwise, or any bodies politic, or corporate or com-
panies, may give any sum or sums of money for the redemption of land tax
charged on hereditaments settled to any charitable uses: 42 Geo. 2, c. 116,
s. 22.
Construction of Gifts to Charities,
Where the purpose of a bequest is uncertain or indefinite, and might compre-
hend objects not falling within the meaning or spirit of 43 Eliz. c. 4, the legacy
cannot be supported as if given to a charitable purpose : Tudor's Charitable
Trusts, 230.
A bequest in trust for such objects of benevolence and liberality as the trustee
in his discretion shall approve will not be supported as a charitable legacy, as
being too indefinite : Morice v. Bishop of Durham, 9 Ves. ; affirmed 10 Ves. 540 ;
Williams v. Kershaw, 5 L. J. (Ch.) 84.
Nor a bequest to trustees to dispose of at their pleasure,, either for charitable or
public purposes, as the laws of the land would admit of, or by any persons in
such shares as the trustees in their discretion should think fit : Vezey v. Jamson,
1 S. & S. 69 ; Order, p. 227.
Nor a bequest of personalty to trustees " to be applied for the relief of domestic
distress, assisting indigent but deserving individuals, or encouraging undertaldnga
of general utility ": Kendall v. Grainger, 5 Beav, 300.
See also James v. Allen, 3 Mer. 17 ; Ellis v. 8elby, 7 Sim. 352 ; Fowler v.
Garlihi, 1 Buss & My. 232 ; Browne v. Yeall, 7 Ves. 50 ; Ommoney v. Butcher,
T. & B. 260 ; Wilkinson v. Barber, L. R. 14 Eq. 96.
And a bequest to trustees of a sum of money " to be laid out by them as they
shall think fit, with the concurrence of the trustees of Shakespeare's house, in
forming a museum at Shakespeare's house in Stratford, and for such other
purposes as the testator's trustees in their discretion should think fit and
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238 ADMINISTEATION.
desirable for giving -effect to the testator's wishes," was held^pot to be a charit-
able gift, and to be void for uncertainty : Thomson v. Shahspeare, 6 Jur. (N.S.)
118,281. '
And where a bequest is made for charitable purposes, and also for purposes
of an indefinite character which are not charitable, the whole bequest will be
void : Ellis v. Selhy, 7 Sim. 352 ; 1 My. & Or. 286 ; cited in Tudor, 223.
A gift for the repair of a grave or tomb, without reference to the distinction
whether in a church or not, is void, not being a charity, and tending to perpetuity :
Bickard v. Bdbson, 31 Beav. 244 ; Fowler v. Fowler, 33 Beav. 616 ; Eoare vi
Osborn, L. E. 1 Eq. 586 ; Order, p. 228.
A gift of money to be applied in building for any charitable purpose upon land
not already in mortmaih, and where no words are used expressly excluding the
application of the money given in the acquisition of land, implies a direction to
purchase land, and is therefore void under the Mortmain Act: Att.-Oen. v.
Davies, 9 Ves. 544, per Lord Bldon ; Pritehard v. Arborwm, 3 Buss. 456 ; Att.-
Oen. V. Eall, 9 Hare, 647 ; Dunn v. Bownas, 1 K. & J. 596 ; Philpott v. St.
George's Hospital, 6 H. L. 0. 338 ; Watmough's Trusts, L. E. 8 Eq. 272 ; Sawkinis
V. Allen, L. E. 10 Eq. 246 ; Order p. 227 ; Pratt v. Earvey, L. E. 12 Bq. 544.
But charitable bequests are not void on the ground of being made to a class
generally : Powell v. Att.-Q-en. 3 Mer. 48; Moggridge v. Thackwdl, 7 Ves. 36 ;
Mills V. Farmer, 1 Mer. 55, per Lord Eldon ; AU.-Oen. v. Drapers' Co., 2
Beav. 508, Order, p. 231.
A bequest to the widows and children of seamen belonging to the town of
Liverpool was Held a good charitable bequest: Powell v. Att.-Oen., supra.
So, too, a bequest "to the poor inhabitants of" St. Leonard, Shoreditch, "for
ever": Att.-Oen. v. Clarke, Amb. 422. And a bequest to the parish of Great
Creaton was held to be a good charitable bequest to be applied for the benefit of
the poor of that parish : 1 Cases in Chancery, 134.
A bequest of personalty for suoh religious and charitable institutions and pur-
poses within the kingdom of England as in the opinion of the trustees should
be deemed proper, is a good charitable bequest : Baker v. Sutton, 1 Keen, 224.
And a bequest to trustees " for the benefit of such public or private charities
as they in their discretion might think fit ": Johnston v. Siuan, 3 Madd. 457 ;
Lewis v. AUeriby, L. E. 10 Eq. 668.
Where annual sums were bequeathed to testators wife for life, to be applied to
charitable purposes generally at the discretion of the wife, with the advice and
assistance, but not under the control of the trustees, the disposition of the fand
was held to be at the absolute disoretion__of the vndow, and no scheme was
directed, but liberty to apply was reserved : Waldo v. Oaley, 16 Ves. 206.
So, too, where income was directed to be applied by the legatee either to pri-
vate individuals or public institutions, the legacies were held not to fail, and a
scheme to be unnecessary : Horde v. Earl of Suffolk, 2 My. & K. 59.
A bequest to certain charitable purposes named by the testator " and other
charitable purposes, as I do intend to name hereafter," the testator making no
subsequent disposition, is not void for uncertainty, and a scheme will be directed;
Mills V. Farmer, 19 Ves. 482 ; see also Moggridge v, Thackwell, 7 Ves. 39 ;
Att.-Gen. v. Syderim, 1 Vern. 224.
A bequest " to promote the knowledge of the Catholic Christian religion among
the poor and ignorant inhabitants " of particular districts, was held to be valid :
West V. Shuttleworth, 2 My. & K. 684.
So, too, a bequest " for the use of Roman Catholic priests in and near London '':
Att.-Gen. v. Gladstone, 13 Sim. 7.
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ADMINISTRATION. 239
And a gift " for the benefit, advancement, and propagation of education and
learning in every part of the world, as far as circumstances will admit :" Whicker
V. Hume, 14 Beav. 509. See also Gurtis v. Button, 14 Ves. 537.
A bequest " for charitable and other pious and good uses " at the discretion of
the trustees, was held to be a valid charitable bequest : AU.-Qen. v. College of
William and Mary, 1 Ves. 243.
So, too, a bequest " to the Queen's Chancellor of the Exchequer for the time
being to be appropriated to the benefit and advantage of Great Britain ": Nightin-
gale V. Ooulburn, 5 Hare, 484 ; 2 Ph. 594. A bequest to the Government of
, Bengal for the express purpose of that Government applying the amount to
charitable, beneficial, and public works at Deoca : Mitford v. Beynolds, 1 Phil.
185, 706. And a bequest of stock " to Her Majesty's Government in exonera-
tion of the National Debt"; Newland v. Att.-Oen., 3 Mer. 684. So, too, a be-
quest for putting out " our poor relations " apprentices : White v. White, 7 Ves.
422. A devise to the British Museum : Trustees of British Museum v. White,
2 S. & S. 594. And a gift of residue " to found at Washington an establishment
for the increase of knowledge among men :" 7 H. L. C. 124.
A gift for the repair of a memorial window forming part of the fabric of the
church and for the repair of a monument in the church is a good charitable gift :
Boare v. Oshorn, L. R. 1 Eq. 586.
So, too, a bequest towards the erection of a new chapel where there was land
duly vested in trustees at the date of the testator's will on which a new chapel
could be built : Booth v. Ca.rter, L. R. 3 Eq. 757.
And a bequest towards building a parsonage-house where there was glebe on
which the house could be built : SeiDell v. Crewe-Bead, L. R. 3 Eq. 60.
Funds supplied from the gift of the Crown, or from the Legislature, or from
private gift, for any legal, public, or general purpose, are charitable funds : Att.-
Gen. V. Eeelis, 2 S. & S. 76.
Bequests of pure personalty to the Eoyal Society, the Royal Geographical, or
Eoyal Humane Society, are charitable legacies : Beaum,ont'v. Oliveira, L. R. 6 Eq.
524 ; L. R. 4 Ch. 309 ; Order p. 230.
And bequests to a convent and to sisters of charity are good as to pure
personalty : OocJcs v. Manners, L. R. 12 Eq. 574.
A gift to the Dominican Convent at C, being a voluntary association of women'
for the purposes of religious exercises, was held not to be a gift for charitable
. purposes, nor void as a gift on a perpetual trust : S. C.
Religious purposes are charitable only when religious services tend directly or
indirectly towards the instruction or edification of the public : S. C. ; Jones
V. Williams, Amb. 651 ; Att.-Oen. v. Saberdashers' Co., 1 My. & K. 420 ;
Ommaney v. Butcher, T. & E. 260.
A provision that a charitable corporation might, notwithstanding the Statutes
of Mortmain, " have, take, hold, and enjby " real estate does not remove the
disability imposed on testators by 9 Geo. 2, c. 36, so as to enable them to
devise lands to the charity : Robinson v. Governors of London Eospital, 10
Hare, 19.
And where by private Act of Parliament a charitable institution is empowered
to receive and retain any sums of money paid, given, " devised, or bequeathed "
by any person for the charity, and to hold lands for the purposes of the charity, it
does not enable a testator to devise to the charity any interest inland : Ldhersole
v. School for Indigent Blind, L. R. 11 Eq. 1 ; Chester v. -Chester, L. R. 12 Eq:
444. But see Perring v. Traill, L. R. 18 Eq. 88.
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240 ADMINISTRATION.
And where, in addition to such provisions, a private Act authorizes the surplus
funds of the charity to he invested on mortgage, a bequest by a testator of debts
secured to his estate by equitable mortgage of leaseholds is void : Chester v.
Chester, L. B. 12 Bq. 444.
A provision in a private Act which empowers a charity to purchase and hold
lands " vrithout incurring the penalties or forfeitures " of the Statutes of Mort-
main, does not pro tanto repeal those statutes : S. C.
A gift for the endowment of a future church is not void under the Mortmain
Act : Sinmtt v. Herhert, L. E. 7 Ch. 232, reversing S. C. 12 Bq. 201; Order, p. 228.
Whether the Court will hold a fund for an indefinite time which has been
given for a charitable object when there is no reasonable prospect of carrying it
into execution, jMoere : S. C.
Where a testator gave the residue of his personal estate to trustees upon
trust to sell and pay debts and legacies, including a legacy of £100 to a charity
school, and bequeathed all the residue of his personal estate to three charities
equally, such residue to be paid out of such part of the personal estate as could be
lawfully applied to the payment, it was held that such a direction was equivalent
to a direction to marshal the assets in favour of the three charities ; and that the
debts and legacies other tha,n the legacy to the school must be paid primarily out
of the impure personalty : Miles v. Harrison, L. E. 9 Ch. 316 ; Order, p. 235 ;
see also Wilis v. Bourne, L. E. 16 Bq. 487.
Chaeities — Increase of Ihcome.
If the income of lands devoted to charitable purposes is apportioned by the
founder of the charity in certain proportions amongst different objects, each
object of the charity will be entitled to participate in the increased income in the
same proportion, subject to the discretion of the Court of Chancery in settling a
scheme to make alterations in certain cases and within certain limits : Deem and
Canons of Windsor, per Lord Kingsdown, 8 H. L. C. 452.
If, on the other hand, lands are given to a body which itself may be an object
of charity, but subject to the payment of specific sums to other objects of
charity, then the increased income will belong to the body which is entitled to
the lands, and the other objects can claim nothing beyond the specific charges :
S. 0. And see Thetford School Case, 8 Co. Eep. 130; Att.-Oen. v. Corporation ,
of Bristol, 2 Jac. & W. 317 ; Att.-O-en. v. Skinners' Co., 2 Buss. 407, 435, 447;
Order, p. 232; Att.-Gen. v. Smythies, 2 Buss. & My. 717; Att.-Oen. v. Fi^sh-
mongers' Company, 5 My. & Cr. 11 ; Att.-Oen. v. Corporation of Beverley,
6 H. L. C. 310, reversing S. C, 6 De G. M. & Gt. 256; Order, p. 232; Att.-Oen-
V. Corporation of South Molton, 5 H. L. C. 1.
And where the general purposes of a gift or conveyance is declared to be
charity, and the particular payments do not exhaust the whole fund, any surplus
vdll belong to the charity, unless there are other circumstances from which a
coijtrary intention can be collected: Att.-Oen. v. Drapers' Co., 2 Beav. 508, n.;
and see oases cited above.
But it is a question to be determined by the particular words of each will
whether a gift of " surplus " or " residue " moans surplus or residue properly so
called, or a mere proportional share of a particular fund : Att.-Oen. v. Corporatim
of South Molton, 5 H. L. C. 1.
And where a testator gives to A. an estate or rents in trust to make certain
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ADMINISTBATION. 241
payments to charities, and speaks of an overplus which he does not specifically
bequeath, A. is entitled to the increased income after making the specified pay-
ments : Att.-Qen. v. Corporation of Burnley, 6 H. L. C. 310. i
And where after making a specific devise of land upon charitable trusts the
residue of rents was to be applied in repairs, and the overplus to go to trustees
to be disposed of at tbeir will, the trustees were held entitled to the overplus of
the increased rents for their own benefit : Att.-Oen. v. Skinners' Co., 2 Euss. 407';
Order p. 232.
So, too, where specific payments are directed by a testator to be made to a
corporation out of income, and the residue to be expended in repairs, with a gift
over to his next of kin in default of the corporation, the whole income was not
considered as dedicated to charity, and the corporation was held entitled to tho
surplus rents for their own benefit: Ati.-Oen. v. Wax Chandlers' Co., L. R.
8 Eq. 452 ; S. C. L. R. 5 Oh. 503. But see Merchant Taylors' Co. v. Att.-Oen.
L. E. 11 Eq. 44 ; S. C. L. R. 6 Ch. 512, where the construction put upon the
charitable devise was that the lands are given, not upon the condition of paying
certain sums to the charity, but upon trust to apply the whole income, and the
company were held bound to apply the whole for charitable purposes.
Where property had been devised in the sixteenth century for the perpetual
sustentation of an almshouse for the poor within the city of R., and to provide
a certain amount of sleeping accommodation for wayfarers, an administration of
the charity which made no increase in the number of wayfarers relieved was held
not to be proper: Att.-Qen. v. Corporation of Bochester, 5 De Gr. M. & G. 797.
No length of usage will warrant deviation from the terms of a trust which the
Court regards as plain : S. C. ; Att.-Oen. v. Corporation of Beverley, 6 De G. M.
& G. 256.
Where charitable legacies are directed by a testator to be paid out of his pure
personalty, the debts, funeral, and testamentary expenses and costs of suit ought
not to be thrown upon the mixed personalty in exoneration of the pure personalty,
but will be apportioned rateably : Beaumont v. Oliveira, L. E. 4 Oh. 309 ; Order,
p. 230 ; see also Bdbinson v. Oeldard, 3 Mac. & G. 735 ; Tempest v. Tempest,
2 K. & J. 635 ; 7 De G. M. & G. 470.
Where one or more of the charitable objects is bad, the Court will either, by
directing an inquiry, ascertain the proportion of the fund attributable to each
object, or if that is not possible, will divide the fund equally between the different
objects : Ait.-Gen. v. Doyley, 7 Ves. 58 ; Brown v. Miggs, 4 Yes. 708 ; Eoare v.
Oshorn^ L. E. 1 Eq. 585.
Where a testator had directed his real and personal estate to be sold, and after
payment of debts a charitable legacy to be paid out of the proceeds, the pure
personalty being insufBcient for payment of the debts, held that the charitable
legacy did not fail altogether, and an apportionment was directed according to the
proportion which the value of the pure personalty bore to the mixed fund :
Briggs v. Clia/mherlain, 18 Jur. 56.
Investment of Charity Moneys.
It is contrary to the policy of the Mortmain Acts and to the usual practice of
the Court to allow money belonging to a charity to be invested in land, even for
the purpose of enlarging the charity : Att.-Oen. v. Wilson, 2 Keen, 680, n.
But charity moneys have been ordered to be invested in land for the purpose
of erecting additional buildings in furtherance of the objects of the charity, the
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242 ADMINISTEATION.
land not being purchased as a mere investment : Att.-Gen. v. Earl of Mansfield,
11 Sim. 601 ; Re Sonnor's Trusts, 3 W. E. 429.
Administration Ct-pebs.
Where a literal execution becomes inexpedient or impracticable, the Court will
execute it as nearly as it can according to the original purpose, or cy-pres : Story,
vol. ii. p. 405; Att.-Gen. v. Oglander, 3 Bro. 0. C. 166; Att.-Oen. v. Oreen,
2 Bro. 0. C. 492; Att.-Qen. v. PeacocTc, Eep. temp. Finch, 245; Att.-Oen. v.
Ironmongers^ Go., 2 Beav. 313; 1 Cr. & P. 508, 522; Att.-Gen. v. Corporation
of Rochester, 5 De G. M. & Gr. 797 ; Re Lambeth Charities, 22 L. J. (N.S.) 958 ;
Re Ashton's Charity, 27 Beav. 117.
And if the object of the gift be certain but not at present in existence, yet if
its existence may be expected hereafter, the Court will neither consider the gift
lapsed nor apply it to a different use : Fonblanque on Equity, vol. ii. ch. 1 ;
Aylet V. Dodd, 2 Atk. 238 ; Att.-Gen. v. Lady Downing, Amb. 571. ■.
And where in a gift to a charity the object of the gift is imperfectly described,
evidence of the donor having been interested in a particular society is admissible :
Kelvert's Trusts, L. E. 12 Kq. 183.
But the Court will not apply the doctrine of cy-pres where there is an entire
absence of intention to give in general charity : Clarke v. Taylor, 1 Drew. 642 ;
New V. Bonaher, L. R. 4.Eq. 655.
In the absence of any direction in the instrument creating the charity as to the
disposition of the surplus there is no resulting trust for the donor or his repre-
sentatives : Tudor's Charitable Trusts, 267, citing Att.-Gen. v. Coopers' Co.,
19 Ves. 189.
Charity Estates^Leases.
In certain cases leases for such a term as 999 years, and even an absolute
alienation of charity lands, has been sanctioned by the Court: Att.-Gen. v.
Hungerford, 8 Bli. 457 ; 2 CI. & F. 374 ; Att.-Gen. v. Pilgrim, 12 Beav. 57 ;
Att.-Gen. v Warrm, 2 Sw. 302.
Where a lease is sought to be set aside on the ground of undervalue, the under-
value must be considerable in amount : Att.-Gen. v. Cross, 3 Mer. 541 ; Ex parte
Skinner, 2 Mer. 457.
The founder's intention, although generally followed, will not be binding where
he directs that the rents of the charity estates are not to be raised : Watson v.
Hinsworth Hospital, 2 Vern.^96, cited in Tudor's Charitable Trusts, 305.
But the founder's direction, when given, as to the duration of the leases must
be followed, unless varied by Act of Parliament : Att.-Gen. v. Mayor of Rochester,
2 Sim. 34 ; Att.-Gen. v. Griffiths, 13 Ves. 565.
Where no direction has been given by the founder as to the duration of the
leases, it is in general laid down that when the trustees of a charity grant a lease
of the property for a longer term than is consistent with proper management, the
lease will be set aside : Tudor's Charitable Trusts, 307 ; Att.- Gen, v. Green, 6
Ves. 452; Att.-Gen. v. Backhouse, 17 Ves. 283; Att.-Oen. \. Pilgrim, 12 Beav.
57, affirmed 2 H. & T. 186.
The Court will, when a proper case is made, authorize leases for long terms of
years : Re Cross Charity, 27 Beav. 592. Although in general building leases for
longer terms of years than ninety-nine years are not sanctioned by the Court :
, Att.-Gen. v. Wood, 6 Beav. 290 ; Att.-Gen. v. Owen, 10 Ves. 560.
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ADMINISTRATION. 243
And as a general rule an agricultural lease for such a term as ninety-nine years
at a fixed rent cannot stand: Att.-Qen v. Lord Sotham, 1 T. & R. 216; Ait.-
Oen. V. Ball, 16 Beav. 388. And an agricultural lease for 500 years has been
set aside, although a large outlay may have been made in lasting improvements
and repairs : Att.-Qen. v. JJavey, 19 Beav. 521 ; Order; p. 234.
Where the custom of an ancient charity had been that the lessees should have
renewals of leases on easy and beneficial terms, and the practice had been sanc-
tioned by the Court, the Court nevertheless in settling a new scheme directed the
land to be let in future at a rack rent. But directed that in granting fresh leases
regard should be had to the claims of those lessees who had expended money
upon the faith of the renewals : Att.-Qen. v. St. John's Hospital, L. R. 1 Ch. 92 ;
Order, p. 234.
Where a lease is set aside, and there has been no actual fraud, an allowance
will be made for permanent improvements: Tudor's Charitable Trusts, 313;
Att.-Qen. v. Qreen, 6 Ves. 452 ; Att.-Qen. v. Kerr, 2 Beav. 420; see also Att.-
Qen. V. Mayor of Stamford, 2 Sw. 592 ; AU.-Qen. v. Dixie, 13 Ves. 540.
Where a charity lease is set aside, the date to which the account of rent
is carried back differs. In aggravated cases it is directed from the date of the
lease, in other cases from the commissioners' report ; but generally from the
filing of the information. A corresponding inquiry as to substantial improvements
will be directed during the same period: Att.-Qen. v. Davey, 19 Beav. 527.
But the allowance for lasting improvements can only be co-extensive with the
period of accounting : Att.-Qen. v. Earl Oraiten, 21 Beav. 392.
The right of the Attorney-General to question the validity of an improvident
lease after twenty years' enjoyment is barred by 3 & 4 Will. 4, c. 27 : St.
Mary Magdalen, Oxford v. Att.-Qen., 6 H. L. C. 189; 3 Jur. (N.S.) 675.
Arid where a lease had been granted for 500 years at a fixed rent, the Statute
of Limitations was held to bar a suit to set aside the lease : Att.-Qen. v. Davey,
4 De G. & J. 136.
Charities administered — Goiavnon Decree for Scheme.
Let a scheme for the future regulation and management of the charity
in the pleadings mentioned, and the application of the present and
future income thereof, he settled by the judge.
Similar Decree — Trustees — Accounts and Inquiries.
Let a scheme for the future regulation, &o., be settled by the judge.
Let new trustees be appointed for the management of the said
charity, and of the estates [funds] and property thereof; and Let pro-
vision be made for the future appointment of trustees. Let the fol-
lowing accounts and inquiries be taken and made : — An inquiry of
what the property of the said charity consists, and where the same
is situate, and what is the income and annual value thereof, and how
and by whom and under and upon what terms, rents, and conditions
the same, and every part thereof, is let and is now held. An account
of the rents and profits of the charity estates received by the Defts, or
by any other person, &c., and of the application thereof, from the —
R 2
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244 ADMINISTRATION.
day of — , tbe date of the filing of the information in this cause.
Att.-Gen. v. Corporation of Ilchester (M.E.), July 19, 1855; Seton, 342.
Inquiries as to Rents and Profits — Letting — Scheme — Costs up to Decree.
Lkt the following accounts and inquiries he taken and made: —
1. An inquiry what were the estates subject to the charitable uses
created by the deeds dated, &c. 2. An account of the rents and profits
of such estates, and of the fines taken for the renewals of the leases
thereof, come to the hands of the Defts, or either of them, or of any
other person, &c. 3. An inquiry at what time such fines were re-
ceived, and in what manner the same and the rents and profits thereof
have been applied. 4. An inquiry whether the said estates have been
properly let. 5. And if it shall appear that the same have not been
properly let, an inquiry whether it will be proper, to take any, and if
any what steps to set aside any leases improperlj' made. Let a scheme
be settled for the future regulation and management, &c. Let proper
persons be appointed to be trustees of the charity estates. — ^Eelator's
costs of suit to this time to be taxed and paid by Defts out of money
in hand on account of the charity. Let the consideration of how such
costs should be ultimately paid and the further consideration of cause
be adjourned. Att.-Gen. v. Corporation of Exeter (M. E.), March 22,
18i3 ; affirmed on appeal, March 7, 1822 ; Seton, 344.
Charity Schemes — Order adopting Scheme.
Let the scheme dated, &c., which has been affirmed by the judge
and filed in the report office of this Court, be the scheme for the
future regulation and management of the charity in the pleadings
mentioned [and for the administration of the estates, funds, or property
thereof].
If Scheme to be set out in Order.
Let the scheme for the regulation and management, &c. [and for the
administration, &o.J, set forth in the schedule to this ordei-, be carried
into effect.
Charity Schemes.
Where a fund is given to a corporation in England for a charitable purpose,
the Court of Chancery may order it to be paid to the corporation without the
Bettlement of a scheme : Society for the Pt'opagation of t/te Oospel in Foreign
Paris V. Att.-Oen., 3 Kuss. 142 ; Walsh v. Gladstone, 1 Ph. 290.
But where a legacy is given to the treasurer or other officer of a charitable
institution not as part of its general funds, but for permanent charitable purposes,
the Court will order a scheme to be settled : Wellbeloved v. Jones, 1 S. & S. 40,
43 ; Corporation of the Sons of the Clergy v. Mose, 9 Sim. 610.
Where a bequest is made to a charity out of tlie jurisdiction, the Court will iu
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ADMINISTRATION. 245
general order the funds to be paid to the trustees named by the founder, without a
scheme : Tudor's Charitable Trusts, 259 ; Forbes^. Forbes, 18 Beav. 522 ; Mil/ord
V. Reynolds, 1 Phil. 185 ; Martin v. Pwdm, 1 Russ. 116.
But where funds are bequeathed by a British subject to a charity, whether
British or foreign, and there is no hand to receive the funds, the Court will order
the funds to be carried to a separate account: Att.-Oen. v. Sturge, 19 Beav. 597;
Att.-Oen. V. Lepine, 2 Sw. 181.
In settling a scheme for a grammar school, where the head master is to be a
graduate of Oxford or Cambridge and in holy orders, the Court will give no specific
directions as to religious instruction or discipline : Warwick Orammar School,
1 Ph. 564.
There is no general rule against the admission of hoarders in a grammar school:
Att.~ Gen. v. Bishop of Worcester, 9 Hare, 328.
But the number of boarders admitted ought not in any manner to affect the
admission of free boys : S. C.
The teaching of writing and arithmetic may he properly introduced into a
scheme for the management of a free grammar school: Att.-Oen. v. Gascoiyne,
2 My. & K. 647.
A general scheme for a grammar school is imperfect without some positive
direction respecting religious instruction : Ohehnsford Grammar School, 1 K. & J.
543. But special clauses as to instruction in the catechism, liturgy, doctrine,
and discipline of the Church of England, or as to the exemption of scholars from
such instruction, will not be directed by the Court, but left to the charity
authorities : S. C.
Where an acadeiny for the education of English Presbyterians had been esta-
blished in the country, arid the original object of the charity appeared to be to
benefit that part of the kingdom, which was totally deficient in academies, the
trustees were held entitled to remove the academy to London, the locality being
regarded as a secondary consideration : Manchester New College, 16 Beav. 610.
Where the income of a free grammar school had become insufiBcieut to carry
out a scheme of education settled by the Court, the Court has sanctioned the admis-
sion of an additional number of boys at an annual payment. But both classes
to be considered as on the foundation ; and no competitive examinations to be
imposed upon the free scholars : Manchester School Case, L. R. 1 Eq. 55 ; L. E.
2 Ch. 497 ; se^ also Berhhampstead School Case, L. K. 1 Eq. 102.
The Court will not alter a scheme deliberately settled without weighty reasons :,
Att.-Gen. v. Bishop of Worcester, 9 Hare, 328, 361. But will do so where the
income of the school has become insufficient to carry out such scheme : Man-
chester School Case, supra.
In framing a scheme for the a;dministration of the funds of a charity, the Court
will not apply such funds to the purposes of education until the primary objects
of the testator are first carried into effect: 22 L. J. (N.S.) 959.
For forms of schemes, see Tudor's Charitable Trusts, 547.
Costs.
Charity Funds — Costs, Charges, and Expenses of Pits, the Relators.
Let the Defts, the Coopers' Company, reimburse to the petitioners,
the relators, out of the charity funds the costs and expenses incurred
by the petitioners in this cause over and beyond the costs which have
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246 ADMINISTRATION.
been paid by the Defts the Coopers' Company as between party and
party. —Eeferto the taxing master to tax any costs and expenses properly
incurred by the petitioners other than the costs of this cause, relating
to the matters in question. Let the Defts, the Coopers' Company, pay
the amount, if any, which the taxing master shall certify to have been
so properly incurred out of the said charity funds. AU.-Oen. v.
Coopers' Go., 3 Beav. 29 ; Seton, 350.
Deft Corporation to pay Costs of Suits of Attorney-General and Defts the
Trustees.
Let the Defts, the corporation of Chester, pay to Her Majesty's
Attorney-General, the informant, and to the Defts, the trustees of the
charity, the following costs, to be taxed by the taxing master as
between party and party, that is to say, &c. Eeference to tax other
costs of the informant and Defts, the trustees of the charity, as between
solicitor and client. — Directions for raising last-mentioned costs out of
charity funds in Court. Att.-Gen. v. Corporation of Chester, 14 Beav.
338.
Informant and Relators' Costs as between Solicitor and Client charged on
Properly the Subject of the Information.
Vary the decree dated, &c., so far as regards the direction to the
taxing master to tax the costs, charges, and expenses of the informant
and relator of and incidental and preparatory to these causes properly
incurred. Let it be referred to the taxing master to tax the costs
of the informaEt and relator of these causes as between solicitor and
client. Declare that such costs, when taxed, are to be a charge upon
the trust property in question in this cause, and not upon the whole
charity property in the pleadings mentioned. Let the said costs be
raised by sale or mortgage of the said trust estate, the subject-matter
of this suit, &c. — Consequential directions. Att.-Gen. v. Kerr, 4 Beav.
297.
Costs payable by Attorney-General under 18 d: Id Vict, c. 90 — Liberty to
apply.
Let it be referred to the taxing master to tax the costs of the Defts
W., E., H., and Let the same, when taxed, be paid to the said Defts
W., E., H., in manner directed by the Act of Parliament of the 18th
and 19th years of the reign of her present Majesty Queen Victoria, c. 90
[with liberty for the last-named Defts, or any of them, to apply to this
Court as they may be advised with respect to the said costs]. Att.-
Gen. v. Hanmer, 4 De G. & J. 205, 217.
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ADMINISTEATION. 247
Costs payable to Attorney-General under 18 d 19 Vict. c. 90.
Let the costs of the Deft A. of this suit he paid to him in the
manner directed by the Act of Parliament 18 & 19 Vict. c. 90, such
costs to he taxed, &o. Att.-Gen. v. Mathias (V.-C. W.), Deo. 23, 1858 ;
Seton, 351.
Costs.
The relator in a charity information was not entitled to costs as between soli-
citor and client as a matter of right : Att.-Qen. v. Fishmongers' Co., 1 Keen, 492 ;
Att.-Oen. V. Kerr, 4 Beav. 302.
But the relator, where there was nothing to impeach the propriety of the suit,
and no special circumstances to justify a special order, was entitled, upon obtain-
ing a decree for the charity, to his costs as between solicitor and client, and to be
paid the difference between the amount of such costs and the amount of the costs
which he might recover from the defts out of the charity estate : Att.-Oen. v. Kerr,
4 Beav. 297, 303, per Lord Langdale.
And in general where the object of the suit is to establish a charity, and the
estate is ample, the costs of all parties will be taxed as between solicitor and
client : Dan. 5th ed. 1301.
There may be special cases in which the relator may be entitled to charges and
expenses in addition to his costs of suit as between soUcitor and client; but such
cases depend upon their peculiar circumstances : Att.-Oen. v. Kerr, 4 Beav. 297.
The extra costs of a charity information instituted in respect of one only of
several gifts to the charity should in the first instance at least fall on the property
which is the subject of the information : S. C.
Where the trustees of a charity, defts to an information, had been guilty of some
neglect in respect of investments, but the information failed as to its greater part,
the defts were ordered to pay the costs as between party and party, and the
relators were refused their extra costs out of the charity fand: Att.-Oen. v.
Fishmmgers' Go., 1 Keen, 492, 501.
Where an heir-at-law is made a deft to the information he is generally entitled
to his costs as between solicitor and client : 4 Bro. Eep. 177 ; Currie v. Pye,
17 Ves. 462 ; Att.-Oen v. Kerr, 4 Beav. 299.
And where no improper point is raised on behalf of the next of kin they are
entitled to their costs as between solicitor and client : Carter v. Oreen, 3 K. & J.
591.
Where the relators are allowed their costs of proceedings which the Attomey-
Qeneral has attended separately by his own solicitor without an order of the
Court, the Attorney-General will not be allowed his separate costs: Att.-Oen. v.
Dove, T. & R. 328.
But costs are often made payable to the Attorney-General in interlocutory
matters independently of the relator : 1 S. & S. 397.
The costs of an information must have been paid by a company in which a
charitable fund is vested if by their neglect the charity has fallen into desuetude
and the general estate of the company has profited by the non-application of the
charity funds: Att.-Oen. v. Mercers' Co., 2 My. & K. 654.
Where a corporation has been guilty of a breach of trust, but the charity had
benefited by the acts of the corporation, no costs of suit were given to the corpo-
ration: Sdicitor-Oen. v. Corporation of Bath, 13 Jur. 866.
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248 ADMINISTEATION.
The lessees will be ordered to pay the costs of a suit to set aside an improvident
lease of charity land: Att.-Oen. v. Lord Botham, T. & R. 220; Aft.-Qen. v.
Owen, 10 Ves. 562.
The Court will, in some cases, order the costs to be raised by mortgage -of a
portion of the charity estates : -Be Lamhelh Charities (L.JJ.), 22 L. J. (N.S.)
958.
And has sometimes ordered a sale for that purpose : Att.-Oen. v. Nethercoat,
cited 1 Hare, 400. But the Court will not order a sale for that purpose except in
extreme oases, nor even direct as of course an inquiry whether a sale would be
beneficial : Att.-Oen. v. Mayor of NewarJc, 1 Hare, 395 ; Att.-Gen. v. Buller,
Jac. Rep. 412, jper Lord Bldon; see also Att.-Gen. v. Mayor of Bristol, 2 Jac.
& W. 294.
In all informations, actions, suits, and other legal proceedings on behalf of the
Crown against any corporation or persons in respectof lands, hereditaments, goods,
or chattels belonging to the Crown, and the proceeds of which are carried to the
Consolidated Fund, the Attorney-General is entitled to recover costs on behalf of
Her Majesty : 18 & 19 Vict, c 90, s. 1.
And the deft is entitled to costs if successful against the Crown, such costs lo
be paid by the Treasury Commissioners : sect. 2,
Where upon a charity information filed by the Attorney-General, the decree
directed inquiries to be made, and the information was held by the House of
Lords wholly to fail, costs were given against the Attorney-General up to the
original hearing : Att.-Gen. v. Mayor, &c., of Southmolton, 5 H. L. C. 1, 39.
But where the charity information has been filed by the Attorney-General upon
an address from the Crown, although dismissed, no costs will be given against the
Attorney-General : Att.-Oen. v. Dean and Canons of Windsor, 8 H. L. C. 369?
404 ; nee also observations of Attorney-General in S. C. p. 459.
In suits instituted by the Attorney-General without a relator costs might have
been ordered to be paid by one deft to another; Att.-Gen. v. Corporation of
Chester, U Bea,v. 338 ; Order, p. 246.
There might have been substantial grounds for an appeal on the part of the
deffs to a charity information to exempt them from payment of costs : Att.-Oen-
v. Corporation of Rochester, 5 De G. M. & G. 797.
Although interest is recoverable under the 1 & 2 Vict. c. 110, ss. 17, 18, on
costs ordered to he paid by one party to another, the Act does not apply to costs
directed to be raised out of a charity estate: Att.-Oen, v, Nethereote, 11 Sim.
529.
In cases in which part of the property given to a charity becomes undisposed
of from being within the Mortmain Act, the costs are paid pro rata out of the
part so undisposed of and the property well bequeathed to the charity : Att.-Oen.
V. Lord Winchelsea; 3 Bro. Rep. 373 ; Att.-Oen. v. Hurst, 2 Cox, 364; Eowse v.
Chapman, 4 Vea. 542 ; Eyre v. Marsden, 4 My. & Cr. 244.
Account of Debts and Liabilities.
13 & 14 Vict. c. 35 ; 23 & 24 Vict. c. 38.
Upon motion, &c. [or, upon the application of], A., the executor of
the -will [or, administrator of the estate of B.] deceased, and upon
[hearing the solicitors for the applicant], and upon reading the pro-
bate of the will [dr, letters of administration of the estate of] the said
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ADMINISTRATION. 249
B., granted on the — day of — to the said A., and an affidavit of the
said A. that no proceedings are pending to administer the estate of
the said B., Let an account be taken of the debts and liabilities afiect-
ing the personal estate of the said B. And in taking such account
debts are to be distinguished from liabilities, and liabilities certain
from liabilities contingent. And the personal estate of the said B. is
to be applied in payment and satisfaction of such debts and liabilities
in a due course of administration. — Liberty to apply.
Tlie Court may ujjon the application of the executors or administrators of any
deceased person direct an account to be taken of the debts and liabilities affecting
the personal estate of such deceased person. But no such order is fo be made
pending any proceedings to administer the estate of such person : 13 & 14 Vict.
c. 35, s. 19.
The order may be made immediately or at any time after probate or letters of
administration shall have been granted ; and may be made either upon motion or
petition of course or at chambers: 23 & 24 Vict. c. 38, s. 14.
The Court or judge may upon application by motion or summons restrain or
suspend until the account directed by such order shall have been taken' any pro-
ceedings at law against such executors or administrators upon such terms as to
tbe Court or judge shall seem just : Ibid.
In taking the account the judge is at liberty upon the application of the ex-
ecutors or administrators to direct that the particulars only of any claim brought
in pursuance of such order shall be certified by his chief clerk without any
adjudication thereon : Ibid.
Notices for creditors to come in have the same force and effect as notices given
by executors under the 22 & 23 Vict. c. 35, s. 29.
Under the latter Act, v?here an executor or administrator has given such or
the like notices as would have been given by the Couit of Chancery in any ad-
ministration suit, at the expiration of the time limited in the notices the executor
or administrator is entitled to distribute the assets : 22 & 23 Vict. c. 35, s. 29.
After notices under the last-mentioned Act and distribution of the estate a suit
cannot be brought against the executor or administrator: Glegg v. Rotoland,
L. E. 3 Eq. 868 ; Cuthhert v. Wharmby, W. N. (1869), 12.
The apphcation for an order under the 13 & 14 Vict. c. 35, must be supported
by production of the probate of the will or letters of administration to the estate
of the deceased person, and by an affidavit of the sole executor or administrator,
or some or one of the executors or administrators, that there are no proceedings
pending to administer the estate : Re Brown, 6 W. E. 5.
Any person who has come in under the order and claimed to be a creditor, or
to have any demand upon the estate by reason of any liability, but whose debt or
claim has not been wholly allowed, may within four clear days after the certifi-
cate has been signed take the judge's opinion thereon ; and may within eight
clear days after the filing of such certificate apply by summons or motion to
discharge or vary it : 13 & 14 Vict. c. 35, s. 20.
Similar provision is made enabling the executor or administrator to apply that
any debt or claim allowed may be disallowed : Ibid.
Where any debt or any certain hability has been allowed, and is not within
fourteen days after the certificate has become binding paid or provided for, the
Court may order payment of such debt or a provision to be made for such liability.
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250 ADMINISTBATION.
or may direct an account of the debts and certain liabilities allowed but remaining
unpaid or unprovided for : 13 & 14 Vict. c. 35, s. 22.
In cases of contingent liability the Court may order the appropriation of a
certain sum of money to meet such liability : 13 & 14 Vict. c. 35, s. 23 ; Be
Hawkins, 10 Hare, App. 83 ; Be Forest, W. N. (1868) 194.
After filing the certificate the Court may upon the application of the executors
or administrators of the deceased restrain by injunction any proceedings taken
against them in respect of any debt or liability : 13 & 14 Vict. c. 35, s. 24.
Note. —The practice under this Act has become obsolete. And see now
Judicature Rules, Order 15.
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CHAPTER XXII.
INJUNCTIONS.
IlSTEEIM OrDEES, Ex PAETE.
Upon motion, &c., by counsel for the Pit, and upon reading, &c.
[evidence], and the Pit by his counsel undertaking to abide by any
order this Court may hereafter think fit to make as to damages in
case the Court shall be of opinion that the Defts have sustained any
by reason of this order which the Pit ought to pay. Let the Deft B.,
his workmen, servants, and agents [or, his solicitors and agents], be
restrained until over the — day of — from, &c. [If ordered : Let the
Pit be at liberty to serve the Deft B. with notice of motion for the —
day of — for an injunction.]
Interim Order on Notice.
Upon motion, &c., by counsel for the Pit, and upon hearing counsel
for, &c., and upon reading [evidence] and [if party served does not
appear, an affidavit of service of notice of this motion on — ] and
the Pit by his counsel undertaking to abide by any order this Court
may hereafter think fit to make as to damages, &c., Let the Deft B.,
his [workmen] servants and agents [or, his solicitors and agents], be
restrained until over the — day of — from, &c.
Injunction, Ex parte.
Upon motion, &o., and upon reading, &o. [evidence], and — [the
party moving] by his counsel undertaking to abide by any order this
Court may think fit to make as to damages, &c. [If ordered, and to
accept short notice of motion to dissolve the injunction hereby
awarded] Let an injunction be awarded against — , to restrain him,
his [workmen] servants and agents [or, solicitors and agents], untU
the hearing of this action or further order from, &c.
Injunction, on Notice.
Upon motion, &c., by counsel for • — , and upon hearing counsel for
— , and upon reading [evidence] [and an affidavit of service of notice
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252 INJUNCTIONS,
of this motion on — ], and — [party moving] by his counsel under-
taking, &c. [undertaking as to damages], Let an injunction be awarded
against — to restrain him, his [workmen] servants and agents [or, his
solicitors and agents], until the hearing of this action or further order
from, &c.
Undertaking as to Damages.
The undertaking is required in all interlocutory applications for interim orders
or injunctions as well on notice as ex parte : Chappell v. Davidson, 8 De G. M.
6 G. 1 ; Tuck V. Silver, Job. 218 ; Wakefield v. Duke of Buccleugh, 11 Jur.
(N.S.) 523.
It is usually given by counsel, and forms part of the order. Where the order
is granted in Vacation, the written undertaking may be inserted in the registrar's
book, and signed by the pit or his solicitor.
Where a limited company is pit, the undertaking must be signed by some re-
sponsible person : Anglo-Danvhian Co. (^Limited) v. Sogerson, 10 Jur. (N.S.) 87.
Where there was no ofSoer of the company resident in London, the under-
taking was permitted to be given on a separate piece of paper and transmitted to
the registrar : Daniell, 5th ed. 1519 ; Pacific Steam Go. v. Gibbs (V.-O. W.-), 14
W. E. 218.
Where a married woman is pit she may be required to give the undertaking
in respect of her separate estate : Eolden v. Waterlow (L.JJ ), 15 W. R. 139.
Where the undertaking as to damages has been given, and the suit is subse-
quently dismissed, the Court can still enforce the undertaking : Newhy v. Harrison,
7 Jur. (N.S.) 981 ; 9 W. E. 849.
Injunction on Payment into Court — Money lodged to Chancery Suspense
Account.
Upon motion, &c., and it appearing by the receipt of one of the
cashiers of the bank that the Pit A. has lodged at the bank, to the
credit of a Chancery suspense account, the sum of £ — , Let an injunc-
tion be awarded, &c. Let the Pit A., on or before the — day of — ,
do all necessary acts pursuant to the 31st of the Chancery Funds Con-
solidated Kules, 1874, for the purpose of having the said sum of —
transferred by him into Court to the credit of this cause, A. v. B., &c.
Where conflicting claims are set up to a fund, the Court will in some cases
make the injunction dependent on the money being brought into Court : Stock-
port District Waterworks Co. v. Jowett (L. C), 13 W. R. 977.
But where there there is no probability that the money is in danger, or that
the parties would be injured if the injunction be ill founded, the Court will not
make the injunction dependent on the money being paid into Court : Maitland
V. Backhouse (L. C), 16 Sim. 58, 69 ; 12 Jur. 45.
Where it is desired to bring money into Court without waiting the time neces-
sary to obtain a direction for the bank to receive such money, it may be lodged
at the bank to the credit of a Chancery suspense account (subject to being dealt
with as hereinafter mentioned, and not otherwise) upon a written application
signed by the person desiring to lodge the same, or his solicitor, &c. : Chancery
Funds Rules, 1874, rule 31.
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INJUNCTIONS. 253
Injunctions and Interim Orders, when granted — Terms.
" No cause or prooeeding at any time pending in the High Court of Justice, or
before the Court of Appeal, shall be restrained by prohibition or injunction ; but
every matter of equity on which an injunction against the prosecution of any
such cause or proceeding might have been obtained, if this Act had not passed,
either unconditionally, or on any terms or conditions, maybe relied on by way-of
defence thereto : Provided always, that nothing in this Act contained shall disable
either of the said Courts from directing a stay of proceedings in any cause or
matter pending before it if it shall think fit ; and any person, whether a party
or not to any such cause or matter, who would have been entitled, if this Act
had not passed, to apply to any Court to restrain the prosecution thereof, or who
may be entitled to enforce by attachment or otherwise any judgment, decree,
rule, or order contrary to which all or any part of the proceedings in such cause
or matter may have been taken, shall be at liberty to apply to the said Courts
respectively, by motion in a summary way, for a stay of proceedings in such
cause or matter, either generally, or so far as may be necessary for the purposes
of justice ; and the Court shall thereupon make such order as shall be just " :
Judicature Act, 1875 (36 & 37 Vict. c. 66), s. 24, r. 5.
" A mandamus or an injunction may be granted by an interlocutory order of
the Court in all cases in which it shall appear to the Court to be just or conve-
nient that such order should be made; and any such order may be made either
imconditionally or upon such terms and conditions as the Court shall think just ;
and if an injunction is asked either before, or at, or after the hearing of any cause
or matter, to prevent any threatened or apprehended waste or trespass, such in-
junction may be granted, if the Court shall think fit, whether the person against
whom such injunction is sought is or is not in possession under any claim of title
or otherwise, or (if out of possession) does or does not claim a right to do the act
sought to be restrained under any colour of title ; and whether the estates claimed
by both or by either of the parties are legal or equitable : " 36 & 37 Vict. c. 66,
s. 25, sub-s. 8.
An application for an order under this sub-section " may be made to the Court
or a judge by any party." If the application be by the pit for an order under
the said sub-sect. 8 it may be made either ex parte or with notice. Judicature
Eules, Order 52, rule 4.
Mandatory Injunctions.
The Court will grant a mandatory injunction where it is the only suiBScient
remedy for the injury sustained : Isenherg v. MoLst India House Go., 3 De G.
J. & S. 263 ; 33 L. J. (Ch.) 392 ; Durtll v. Pritchard, L. R. 1 Ch. 244 ; City of
London Brewery Go. v. Tennant, L. E. 9 Ch. 212, 218, 219 ; Ooodson v. Mickard-
son, L. E. 9 Ch. 221 ; Eogg v. Scott, L. E. 18 Eq. 444 ; Smith v. Smith, L. E.
20 Eq. 20.
There is no rule which prevents the Court from granting a mandatory injunc-
tion where the injuiy sought to be restrained has been completed before filing the
bill : Durell v. Pritchard, L. E. 1 Ch. 244.
Where the injury can be compensated by a pecuniary sum the Court will not
grant a mandatory injunction, but will either direct an inquiry as to the damages
sustained, or give liberty to the pit to proceed at law: Deere v. Quest, 1 My. &
Cr. 516 ; Isenherg v. Sast India House Go., 33 L. J. (Ch.) 392 ; Lowe v. Innes,
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254 INJUNCTIONS.
10 Jnr. (N.S.) 1037 ; Durell v. Pritchard, L. E. 1 Ch. 244 ; Martin v. Seadon,
L. E. 2 Eq. 425 ; Bower v. Law, L. E. 9 Eq. 636 ; Lady Stanley v. Earl of
Shrewsbury, L. E. 19 Eq. 616.
And the Court lias power to give damages although a building complained
of is completed before proceedings are instituted and a mandatory injunction is not
granted : City of London Brewery v. Tennant, L. E. 9 Oh. 212, 218.
,A mandatory injunction maybe obtained upon an interlocutory application :
Bervey v. Smith, 1 K. & J. 392 ; Att.-Gen. v. Metropolitan Board of Works, 1 H.
& M. 312 ; Hepburn v. Lordan, 2 H. & M. 352.
The right to a mandatory injunction is gone if there has been unreasonable
delay, and mischief would be caused thereby to the deft : Kerr, 232 ; Wicks v.
Hunt, Job. Eep. 372 ; Ward v. Higgs, 12 W. E. 1074.
WASTE.
Ornamental Trees — Trees growing for Protection or Shelter — Young Trees.
Let an injunction te awarded to restrain the Deft D., her agents,
servants, and workmen, from cutting down any timber or other trees
growing on the estate in the Pit's bill mentioned, which are planted
or growing thereon for the protection or shelter of the several mansion-
houses belonging to the said estate or for the ornament of the said
houses, or which grow in lines, walks, vistas, or otherwise for the orna-
ment of the said houses, or of the gardens, or parks, or pleasure grounds
thereunto belonging ; and also to restrain the Deft D., her servants,
workmen, and agents from cutting down any timber or other trees
except at reasonable times and in a husbandlike manner ; and likewise
from cutting down saplings and young trees not fit to be cut as and
for the purposes of timber until, &c. Champerlayn v. Bummer, 1 Bro.
0. C. 166 ; Seton, 890.
Unripe and Ornamental Timber — Inquiries as to Timber cut— Account.
Declare that the Deft W. W. is entitled to fell all such timber
on the devised estates as is mature and fit to be cut, except such
as has been planted or left standing for ornament or shelter with
reference to the occupation of the mansion-house at Brattleby ; but
that he is not entitled to fell any unripe timber on the said estate, or
any timber which was planted or left standing for ornament or shelter
with reference to the occupation of the mansion-house at Brattleby.
Continue the injunction until further order. The Pit undertaking
to be answerable as the Court shall direct in respect of any damage
thereby occasioned to the Deft W. W. Inquire whether any and
which of the trees marked on the Brattleby estate for cutting are
timber planted or left standing for ornament with reference to the
occupation of the said mansion-house. Inquire whether and what
ornamental or sheltering or immature timber or trees have been cut
by the said Deft on the estates at Brattleby and North Kilsey, or
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INJUNCTIONS. 255
either of them, which he ought not to have cut having regard to
the aforesaid declaration ; and if any have heen so cut, Let an
account be taken of the value of the trees so improperly cut. — Adjourn
further consideration. — ^Liberty to apply. Turner v. Wright (V.-O. W.),
6 Jur. (N.S.) 647.
Ornamental Trees and Trees for Shelter not confined to Trees contiguous to
Mansion-house.
Let an injunction be granted to restrain the Deft until, &c., from
cutting down or felling any trees or timber standing or growing for
ornament or shelter of the mansion-house and buildings at Ombersley
Court, or any other houses or buildings on the settled estates, or which
grow for ornament in any of the vistas, avenues, walks, pleasure
grounds, or plantations belonging to Ombersley Court, or to any part
of the estates, hereditaments, and premises late belonging to Edwin
Lord Sandys, deceased, settled and conveyed by the indenture of
settlement to the use of the Pit, and from cutting down or felling
saplings growing on any part of the said estates not proper to be
felled. Marquis of Downshire v. Lady Sandys, 6 Ves. 107.
Inquiry as to Trees planted for Ornament or Special Purposes —
.Bepairs, d-c.
Let an inquiry be made whether the woods called Long Thicket,
Chick's Thicket, and Ford's Coppice, or any or either or which of them,
and the six elm trees and one oak tree on Lovedere Farm, and the oak
trees and elm trees on the pastiire land on West Bower Farm, which
have been marked for cutting, or any or either and which of such trees,
were or was or have or has been planted or left standing by any owner
in fee or in tail of the Hallswell estate, or any part thereof, for the orna-
ment or shelter of the mansion-house of the said estate, or of the gardens,
park, or pleasure grounds thereto belonging, or of any road or roads,
path or paths leading thereto, or for the purpose of intercepting the view
of any object or objects intended to be kept out of sight from the said
mansion-house, gardens, and park or pleasure grounds, or any part
thereof. And in case it shall be so found as to the said woods, or any
or either of them, then Let further inquiry be made whether the trees
therein have ordinarily, or otherwise and under what circumstances,
been cut for repairs or for sale, and what estate or interest the person or
persons by whom or by whose order or direction the same were so cut
had in the said Hallswell estate at the time of the cutting thereof; and
whether the trees in the said woods, and the said other trees which
have been marked for cutting, or any or either and which of such trees,
injure or impede the growth of any other trees adjoining or near
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256 INJUNCTIONS.
thereto, which are of so much importance to the purposes of ornament
or shelter to the said mansion-house, gardens, parks, or pleasure
grounds as that the removal of the trees so marked for cutting is
essential to such purposes of ornament or shelter. Ford v. Tynte
(L. J J.), 10 Jur. (N.S.) 429.
Timber — Decree in Adminislration Suit — Account.
Declaee that the personal estate of the late Duke of Leeds is liable
to account to the Pit for all the benefit and profits received by him
from or by means of the acts of equitable waste complained of in the
bill, and committed by him on the family estate at Keeton, with inte-
rest on the ainount at £4 per cent, per annum from the 10th July,
1838, the day of the late duke's death. Let an account be taken of all
sums of money received by the late duke, or by any person or persons
by his order or for his use, arising from the sale of the materials of
Keeton Hall and the of&ces, outbuildings, hothouses, and other build-
ings belonging thereto. Let an inquiry be made what timber and
other trees on the estate in question which were planted or growing
for the protection or shelter of Keeton Hall, or for the ornament of the
said house, or of the gardens, park, or pleasure-grounds belonging
thereto, or which grew in lines, walks, or vistas, for the ornament of
the house or of the gardens, park, or pleasure-grouads thereto belong-
ing were felled by the late duke, and also what saplings and young
trees not fit to be cut were felled by him. Let an account be taken of
all sums of money received by the late duke, or by any person or per-
sons by his order or for his use, from the sale of such timber and other
trees so cut down, andto compute interest on such sums at £4 per cent,
from the day of the decease of the late duke. And in case the Defts
his executors shall not admit assets, &c.. Let an account be taken of
the personal estate of the late duke not specifically bequeathed come
to the hands of his executors, &c. Let the late duke's personal estate
be applied in payment of his funeral expenses and debts, including
what the master shall find to be due for principal and interest in taking
the accounts hereinbefore directed in a due course of admiaistration.
And in case the personal estate shall be insufficient for that purpose :
Declare that the deficiency ought to be raised by sale or mortgage of
the late duke's real estates. And in that case Let an inquiry be made
what real estate the late duke died seised and possessed of, &c. — Direc-
tions for taxation and payment of costs of suit. Duke of Leeds v. Lord
Amherst, 14 Sim. 357, 364; 2 Ph. 116.
Mines — Injunction — Inspection — Account.
Let an injunction be awarded, &c., from digging or getting any
coals, culm, or other minerals or soil from under the E. estate in the
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INJUNCTIONS. 257
Pit's bill meutioned, or in any manner digging under the same, and
also from destroying or taking away the pillars or supports which have
been left or erected in the workings under, &e., or any part thereof,
and also from using such parts of the communications called, &c., or
any part thereof. Let the Pits or a proper person to be appointed by
them for that purpose be at liberty, upon reasonable notice being given,
to inspect the workings of the Defts under the said E. estate. Let the
following accounts be taken : —
1. An account of the several quantities of coal, culm, and other
minerals worked, raised, or procured by the Defts or any of them, or by
any other person or persons by their or any of their order or use, out
of or from the said E. estate or any part thereof. 2. An inquiry how
and in what manner, and at what time or times, and for what sum or
sums of money the same and every part thereof have or has been sold,
applied, or disposed of. Baynton v. Leonard (M. E.), Feb. 15, 1853 ;
Seton, 900.
Minerals under Copyholds — Account — Injunction.
Lbt an account be taken of all the coals and minerals which have
been raised or dug by the Deft T. H., or by his licence or authority,
from underneath the piece of copyhold land within and parcel of the
manor of B., situate, &c., and of the value of such coal and minerals,
and of all money received by the Deft T. H., or by his order or for his
use, from the sale of or otherwise in respect of such coal and minerals.
Let a perpetual injunction be awarded against the Deft T. H. to
restrain him, his agents, servants, and workmen, from raising, dig-
ging, or working, or in any way interfering with the coal or other
minerals lying underneath the said piece of copyhold land, or under
any other copyhold lands of the Deft T. H. within the said manor,
being old enclosures, or which have been allotted to him as copyholds
out of the open arable fields. Deft to pay costs of suit. — Adjourn
further consideration. — Liberty to apply., Duke of Portland v. Hill,
L. E. 2 Eq. 765.
Waste.
A man who applies for an injunction against waste is required to shew a par-
ticular title. An affidavit generally that the pit is entitled in fee, or an affidavit
as to information and belief, is not sufficient : Kerr, 237 ; Whiielegg v. Whitelegg,
1 Bro. C. C. 57 ; Davies v. Leo, 6 Ves. 784.
And pit's affidavit should state some actual violation of right : Gibson v. &mith,
2 Atk. 182 ; Hanson v. Qa/rdner, 7 Ves. 309.
Beasonable diligence must be used in making application for an injunction :
Bagot V. Bagot, 32 Beav. 509 ; Barry v. Barry, 1 Jac. & W. 651 ; Norway v.
Rome, 19 Ves. 159 ; Parrott v. Palmer, 3 My. & K. 635 ; Olegg v. Edmondson,
8 De G. M. & G. 808.
The intervention of an intermediate estate for life does not deprive the owner
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258 INJUNCTIONS.
of the inheritance, or a remainderman for life of his right to an injunction : Perrot
V. Perrot, 3 Atk. 94; Rdbinsm v. Litton, 3 Atk. 210; Davies v. Leo, 6 Ves.
784 ; Blagrave v. Blagrave, 1 De Gr. & Sm. 252.
A mortgagee in possession with a sufficient security may not commit waste,
and he is bound to do necessary repairs : Godfrey v. Watson, 3 Atk. 518 ; Sandon
V. Hooper, 6 Beav. 246.
When a mortgagee in possession pending a redemption suit committed waste,
he was ordered on motion to deliver up the premises to the mortgagor : Sanson
V. Derh/, 2 Vem. 392.
In general the Court of Chancery will not interfere to restrain permissive waste,
such as neglecting repairs : Powys v. Blagrave, 4 De G. M. & G. 448. But will
do so under special circumstances : Caldwell v. Baylis, 2 Mer. 408.
Although a tenant for life may hold his estate without impeachment of waste,
the Court of Chancery has not allowed an unconscientious use of the legal power ;
see observations of L. J. Turner in Micklethwait v. Micklethwait, 1 De G. & J.
504, 524.
And now " an estate for life without impeachment of waste shall not confer or
be deemed to have conferred upon the tenant for life any legal right to commit
waste of the description known as equitable waste, unless an intention to confer
such right shall expressly appear by the instrument creating such estate " : Jud.
Act, 1873 (36 & 37 Vict. c. 66), sect. 25, sub.-sect. 3.
The Court will restrain by injunction a tenant for life from pulling down family
mansions or farmhouses : Vane v. lord Barnard, 2 Vem. 738 ; Aston v. Aston,
1 Ves. 264, 266 ; cutting down timber of too young growth : Chamberlayne v.
Bummer, 1 Bro. C. C. 166 ; Order, p. 254 : Turner v. Wright, 6 Jur. (N.S.) 647, 809;
Order, p. 254 ; cited in Dan. 5th ed., 1479 ; ornamental trees and trees for shelter :
Pachmgton's Case, 3 Atk. 215 ; Lord Downshire v. Lady Sandys, 6 Ves. 107 :
Order, p. 255 ; Stansfeld v. Habergham, 10 Ves. 273 ; Wellesley v. Wellesley,
6 Sim. 497 ; Campbell v. Allgood, 17 Beav. 623 ; Micklethwait v. Micklethwait,
1 De G. & J. 504; 3 Jur. (N.S.) 1279; Halliwell v. Philipps, 4 Jur. (N.S.)
607 ; Ford v. Tynte (L.JJ.), 10 Jur. (N.S.) 429 ; Order, p. 255 ; plantations,
vistas, avenues, and rides: Lord Tamworfh v. Ferrers, 6 Ves. 419; and trees
planted for special purposes: Day v. Merry, 16 Ves. 375, cited in Daniell,
5th ed., 1479. See also Honywood v. Honywood, L. R. 18 Eq. 306.
It is not necessary that timber should be contiguous to a house or park in order
to entitle it to the protection of the Court as being ornamental: Marquis of
Downshire v. Sandys, 6 Ves. 110, cited in Kerr, 272.
The cutting of saplings or young trees or underwood at unseasonable times has
been held to be a malicious destruction : Hole v. Thomas, 1 Ves. 589 ; Aston v.
Aston, 1 Ves. 264.
But the Court will permit ornamental timber, or timber forming shelter to a
mansion-house, to be felled where it is decaying, or injurious to young trees, or
necessary for the comfort of the house : Lushington v. Boldero, 6 Madd. 149 ;
Att.-Oen. V. Duke of Marlborough, 5 Madd. 280; Campbell v. Allgood, 17 Beav.
637, cited in Kerr, 280.
And a landowner who has demised for a term of years the right of shooting
over his land is not thereby prevented from cutting timber in the ordinary course
of management, although injurious to the shooting : Oeams v. Baker, L. R. 10
Ch. 355 ; Jeffryes v. Evans, L. R. 18 Eq. 259.
Tenants in tail after possibility of issue extinct are subject to the same restric-
tions as tenants for Ufe without impeachment of waste.
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INJUNCTIONS. 239
And the doctrine of equitable waste applies where estates were limited by means
of executory devises over, to go in succession : Turner v. Wright, 6 Jur. (N.S.)
647. There is no difference whether the property goes by way of executory
devise or remainder : S. 0.
The report of an expert, to whom a reference has been made by the Court under
the 15 & 16 Vict. c. 86, s. 42, to report as to timber, is not final and conclusive :
Ford V. Tynte, 10 Jur. (N.S.) 429.
If there is any timber on the estate which is overripe, or in a state of decay, or
which ought for any other reason to be cut down, the Court of Chancery will, on
the application either of the tenant for life or the remainderman, order It to be
cut down and sold, imposing terms upon the fund produced by the sale : Bewick
V. Whitfield, 3 P. Wms. 268 ; ToUemache v. Tdlemache, 1 Hare, 457 ; Ferrand v.
Wilson, 4 Hare, 382, cited in Kerr, 278.
A tenant for life will not be allowed to derive any benefit from timber impro-
perly and wilfully cut by him : Cfarth v. Cotton, 3 Atk. 751 ; 1 Dick. 185 ;
Lushington v. Boldero, 15 Beav. 1 ; Bagot v. Bagot, 82 Beav. 509.
But where a long period has elapsed before bill filed, the Court will deal
leniently with the tenant for life in directing inquiries: Ba^ot v. Bagot, 32
Beav. 509.
And although the Court will grant an injunction to restrain cutting down
ornamental timber, yet where the timber has been felled the amount of damages
can 6nly be measured by the damage done to the inheritance: Buhh v. Yelverton,
L. E. 10 Eq. 465.
In all cases in which a bill for an injunction will lie to restrain future waste, a
Court of Equity will give an account of past waste : Kerr, 284 ; Jesus College v.
Bloom, 3 Atk. 263 ; Duke of Leeds v. Lord Amherst, 14 Sim. 357, 364 ; 2 Phil-
lips, 117.
And after the determination of the tenant's estate a bill will lie for an account
of equitable waste, although no injunction is prayed by the bill : Oarth v. Cotton,
1 Dick. 183; Smith v. Cooke, 3 Atk. 381 ; Grierson v. Eyre, 9 Ves. 346.
As to waste generally, in the cases of mines and minerals, see Bishop of
London v. Webb, 1 P. Wms. 528 ; Whitfield v. Bewit, 2 P. Wms. 240 ; Clavering
V. Clavering, 2 P. Wms. 389 ; Mitchell v. Dors, 6 Ves. 147 ; Viner v. Vaughan,
2 Beav. 469 ; Bagot v. Bagot, 32 Beav. 509 ; Eanrl Cowley v. Wellesley, L. R.
1 Bq. 656 ; Glegg v. Rowland, L. E. 2 Eq. 160.
An account of profits will be directed in the case of mines and collieries, with-
out reference to the question whether or not an injunction will lie : Bishop of
Winchester v. Knight, 1 P. Wms. 406 ; Pulteney v, Warren, 6 Ves. 89 ; Thomas
V. Oakley, 18 Ves. 184.
A lease of lands (without mentioning mines) will entitle the lessee to work
open, but not unopened, mines. If there be open mines, a lease of land with the
mines therein will not extend to unopened mines : Olegg v. Rowland, L. R. 2 Eq.
160.
In lands held by copy of court roll, not at the will of the lord, but according
to the custom of the manor, the freehold is in the lord; and in the absence of
custom (the onus of establishing which lies upon the tenant) the tenant will be
restrained from working the minerals, and an account directed : Duhe of Portland
V. EUl, L. E. 2 Eq. 765; see Order, p. 257.
A railway company, on purchasing land under the Lands Clauses Act, 1845,
does not become entitled to the mines under the land : Oreat Western By. Co. v.
Bennett, L. E. 2 H. L. 27,
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260 INJUNCTIONS.
The property in minerals severed from'tlie inheritance vests in a manner similar
to that of severed trees. The owner of the inheritance is entitled to the proceeds'
as against persons having estates in remainder prior to the ultimate limitation in
fee vested in him : Kerr, 283 ; Bell v. Wilsm, L. E. 1 Ch. 303.
The lessee of land who erects huildinga thereon without the consent of his
lessor does not commit waste unless it is proved that they are an injury to the
inheritance : Jones v. Chappell, L. E. 20 Eq. 539.
The owner or lessee of houses let or sub-let to weekly tenants cannot maintain
a suit to restrain a temporary nuisance, such as the noise of machinery in adjacent
premises. BemMe, such a suit could be maintained by a weekly tenant if the
nuisance were of such a nature as to be injurious to his health or comfort : S. C.
TEESPASS.
Threatened Trespass — Injunction.
Let a perpetual injunction be awarded against the Defendant, his
servants, agents, and v^orkmen, from paring, cutting, or otherwise
injuring any grass, turf, or sods upon the Whaddon estates in the
Pit's bill mentioned, or any part thereof, and from cutting, felling, or
otherwise injuring any of the timber or timber-like trees, brushwood,
underwood, or shrubs now growing, standing, and being on the said
Whaddon estates, and each and every part thereof. Lowndes v. Betile
(V.-C. K.), 10 Jur. (N.S.) 226 ; 12 W. E. 399.
Trespass — Hoof of Building — Mandatory Injunction.
Let an injunction be awarded against the Deft G. L. to restrain
the Deft from permitting the room or building in the Pit's bill men-
tioned, or any part thereof, to remain on the flat lead roof of the
Pit's shop and premises comprised in the indenture of lease of the
18th December, 1861, in the bill also mentioned. Let the Deft Gr. L.,
his servants, agents, and workmen, be in like manner restrained from
in any manner interfering vrith the said flat roof of the Pit's said shop
and premises, or any part of such roof, during the subsistence of the
terms demised by the said indenture of lease. Defendant to pay costs
of suit. Martyr y. Lawrence (V.-O. W.), afBrmed 2 De G. J. & S. 261.
Trespass — Buildings — Surface Water — Mandatory Injunction.
Let a perpetual injunction be granted against the Defts the trustees
of the Wazley, Armley, and Bramley district of road, in the county
of York, in the bill mentioned, and their workmen, servants, and agents,
from encroaching upon the lands of the Pit to the north of the road, so
constructed as in the bill mentioned, by making or building any
buttresses or other works thereon, or in any other manner, and from
continuing the said road in such a state and condition as to cause the
surface water therefrom to flow upon or over the Pit's lands, or to
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INJUNCTIONS. 261
cause the water upon the Pit's lands to he thrown back upon the Pit's
said lands. Holmer v. JJptm (per Lord Cottenham), Eeg. Lib. A. 1840,
fo. 169, cited L. E. 9 Ch. 214.
Mines — Trespass — Inquiries as to Goal gotten — Injimction.
Declare Deft Garrett to be answerable in manner hereinafter men-
tioned in respect of all coals gotten or removed from under the closes
or lands mentioned in the lease of March, 1848, by means of work-
ings carried on from the North Side Colliery and Malago Vale Colliery,
or either of them, prior to the 29th of May, 1854. , Declare Stuokey's
Banking Company, and the Defts Aiken and Coles as public ofSoers of
the same, to be chargeable in manner hereinafter mentioned in respect
of all coal gotten or removed from under the closes and lands in the
said lease mentioned, by means of workings carried on from the said
collieries, or either of them, since the 29th May, 1864. Inquire what
coals were so gotten and removed before the 29th May, 1854 ; and
what coals were so gotten or removed since that date. Let it be
stated in the certificate to be made under this order whether any and
what quantity of coal has been gotten or removed from under the said
closes the precise time of getting or removing which cannot be ascer-
tained. An account of the value of all coal in respect of which the
said Defts are respectively declared to be chargeable according to the
market price of such coal at the pit's mouth at the time of the sale or
other disposition thereof, or as nearly thereto as can be ascertained. All
just allowa;nces to be made to the said Defts in respect of their charges
and expenses on account of such coal. The aforesaid declarations and
inquiries to be without prejudice to any question whether Garratt and
Aiken and Coles, or either of them, are subject to be charged in
respect of the coal (if any) which may have been gotten or removed,
but the precise time of getting or removing which cannot be precisely
ascertained as being either before or after the 29th May, 1854.
Let a perpetual injunction be awarded to restrain the Defts
Stuckey's Banking Company from digging or getting coals in or under
any or either of the collieries, closes, or lands comprised in the said
indenture of the 27th March, 1848, other than Moffat's land, or in any
manner digging under the same, and from carrying on any workings
in the said collieries of the Pits, or any or either of them, or under
the said closes or lands, or any or either of them. And also to restrain
the said Defts from continuing to use the air courses or level roads
Tinder the said closes or lands mentioned in the said indenture.
Let the Defts Aiken and Coles and Stuckey's Banking Company
give and allow to the Pits, their servants, workmen, and agents, access
through their pits and the air courses and roads in their collieries, in
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262 INJUNCTIONS.
order that the Pits may stop and close the air courses in the bill men-
tioned, and stop up or remove the roads in the Pits' mines. Powell v.
Aiken, 4 K. & J. 343.
Mines — Leases — Bight to Support — Injunction.
Declare that the Defts are not entitled under the indenture of lease,
dated, &c., to work any coal or mineral, or to execute any works upon
the portion of land coloured red upon the plan attached to the said
lease, or to search for any coal or mineral therein. — Injunction accord-
ingly.— ^Declare that the Defts are entitled to have a sufficient support
for the upholding of the mansion-house, offices, and buildings called
" Brymbo Hall," situate, &c., and that the Defts are not entitled to
remove any of the earth or soil necessary for such support from any
part of the demised premises. — Inquiry whether any and what part of
the lands comprised in the said lease other than such portion of land
coloured red affords such support to the said mansion-house, offices,
and buildings as to render it necessary that the same or any and what
part thereof should be left undisturbed for the purpose of such support.
— Liberty for Pits to bring action in respect of past workings. — Liberty
for Pits to have access to the mines for the purpose of making such
supports as may be necessary for upholding the mansion-house, &c.
Dugdale v. Robertson, 3 K. & J. 695.
Contiguous Mines-T— Injunction — Inquiry as to Value at Pit's Mouth —
Damages.
Let (1) An inquiry be made what was the market value at the pit's
mouth of all the coal worked and gotten by the Defts from the Pits'
mine at Colgnant in the Pits' bill mentioned, and the aggregate amount
thereof, after making to the Defts all just allowances for the costs and
expenses incurred by them in bringing such coal to the pit's mouth,
and all other just allowances, but not including the costs of severing
such coal. Let the Defts within one month from the date of the chief
clerk's certificate of the result of such inquiry, pay such aggregate
amount as aforesaid to the Pits the Llynvi Valley Coal and Iron
Company, Limited. Let the following further inquiry be made :
(2) An inquiry whether the Pits have sustained any, and if any
what, damage by reason of the Defts having broken through the
boundary between their mine of Tywith in the pleadings mentioned,
and the Pits' said mine of Colgnant. Declare that the Defts are liable
to pay to the Pits the amount (if any) which shall be certified
to be payable in respect of such damage. Defts to pay costs up to
hearing. — Adjourn further consideration. — Liberty to apply. Llynvi
Valley Coal Co. v. Brogden, V.-O. B., Nov. 15, 1870,
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INJUNCTIONS. 263
Workings for Coal, Culm, or Fire-clay — Injunction — Inspection.
The Pits by their counsel undertaking, &c., Let the Deft W. E.,
his agents, servants, and workmen, be restrained until over the 23rd
January, 1873, from making, continuing, or using for any purpose
any levels or level drifts, or drift workings, or excavations under the
farms and lands of the Pit C. M. in the Pits' bill mentioned, or
any of them, or any part thereof, or under the eastward half of the road
in the Pits' bill mentioned, where it runs parallel to the said farms
and lands, and from getting or disturbing any coal, culm, fire-clay, or
other minerals, out of or under the said farm and lands, or any of
them, or any part thereof. And also to restrain the Deft until over
the 23rd January, 1 873, from permitting or suffering the three levels
driven by him, as in the Pits' bill mentioned, or any of them, to
remain open or pervious to water any longer than the Pits may
reqxiire the same to be left open for the purposes of inspection and
measurement hereinafter mentioned.
Let, for the purposes of measuring the Defts' alleged wrongful
workings, and ascertaining the quantities of coal, culm, and fire-clay
respectively gotten, severed, or wasted, as in the Pits' bill mentioned,
the Deft permit the Pits, their surveyors, Agents, servants, and work-
men, at all seasonable times, upon one day's notice, to have full and
free access thereto by the Defts' pit and workings in the Pits' bill
mentioned, and for that purpose to use the machinery, tackle, and
appliances of the Deft. Mamel v. Evans (V.-C. B.), Jan. 16, 1873.
Infection of Workings — Plans — Gostg.
Upon motion, &c. Let the Pits or their agents be at liberty, at all
seasonable times, upon giving one clear day's notice, to descend as far
as may be necessary into the Deft's mines in the Pits' bill mentioned,
in order to ascertain whether the Deft has worked into the Pits' land
in the bill mentioned, and if so, how far and to what extent. Let
the Pits, or their agents and surveyor, be at liberty to do all such acts
in the way of measuring, dialling, or latching, and to make all such
plans or surveys as may be necessary for the foregoing purpose. Let
the Pits pay to the Deft any expenses to be incurred or occasioned by
such inspection. Bennitt v. Whitehouse, 28 Beav. 119 ; Eardley v. Lord
Granville (M. R), June 3, 1875.
Highway — Wat&- Pipes — Mandatory Injmction.
Let a perpetual injunction be awarded to restrain the Deft Eichard
Eichardson, his servants, workmen, and agents, from allowing any pipes
which have been already laid by the Deft in or though the land or
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264 INJUNCTIONS.
soil beneath the surface of the highway adjoining the Pit's lands in
the bill mentioned (to one undivided moiety whereof the Pit is entitled
as in the bill is also mentioned) to remain therein. Deft to pay Pit's'
costs of suit. Goodson v. Bichardson (M..'R.), Deo. 3, 1873; affirmed,
L. E. 9 Ch. 221.
Bights of Common — Inclosures — Injunction.
Thb Deft T. H. having disclaimed at Bar, Let the Pits' bill be dis-
missed against the said Deft with costs, to be taxed and paid by the
Pits. Declare that the Pits and the other owners and occupiers of
lands and tenements lying within that part of the Forest of Essex,
in the county of 'Essex, now known by the name of Epping Forest,
other than the waste lands of the said Epping Forest, are entitled
in right of and as appurtenant to their several lands and tenements
within the said Epping Forest to a right of common of pasture upon
all the waste lands of the said Epping Forest for all manner of cattle,
that is to say, neat beasts and horses, commonable within the forest,
levant and couchant upon their respective lands within the said
Epping Forest, according to the assizes and customs of the said
Epping Forest ;\ and Let the Pits be quieted in the possession and
enjoyment of their said rights.
And the Pits (having regard to the provisions of the Epping Forest
Act, 1871, the Epping/Forest Amendment Act, 1872, and the Epping
Forest Act, 1878), by their counsel not asking for any injunction as
regards lands wliich on the 14th August, 1871, were actually covered
with buildings, or actually enclosed and used as the gardens belonging
to or curtilages of buildings, or as regards lands which were actually
inclosed on or before the 14th August, 1871. Declare that the Pits
are entitled to an injunction to restrain the Defts respectively, other
than the Attorney-General and the Deft T. H., and their respective
servants and agents, from permitting or suffering to be or to remain
inclosed or built upon any of the waste lands of the said Epping
Foi'est other than and except lands which on the 14th August, 1871,
were actually covered with buildings, or actually inclosed and used as
the gardens belonging to or curtilages of buildings or lands actually
inclosed on or before the 14th August, 1851.
Let an inquiry be made what waste lands of the said Epping Forest
in the possession of or belonging to the Defts respectively, other than
the Attorney-General and the Deft T. H., for any and what estate or
interest, are inclosed or built upon other than and except as aforesaid.
Liberty to apply for an injunction or injunctions in pursuance of
the declaration of right hereinbefore mentioned.
Let a perpetual injunction be awarded to restrain the Defts respec-
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INJUNCTIONS. 265
tively (other than the Attorney-General and the Deft T. H.), and their
respective servants, agents, and workmen : —
1. From building upon any part of the waste lands of the said
Epping Forest which have heen inclosed since the 14th August, 1851,
except such parts thereof as were on the 14th August, 1871, actually
covered with buildings, or actually inclosed and used as the gardens
belonging to or the curtilages of buildings, and from carrying away
or destroying the loam or soil of any part of such waste land except
as aforesaid, and from destroying or injuring the pasture thereof, or
herbage being or growing thereon, so as in any manner to prevent,
disturb, or interfere with the exercise by the Pits, or the other persons
entitled as aforesaid, or any of them, of their said rights hereinbefore
declared over the said lands, where the same shall become uninclosed.
2. From inclosing or building upon any part of the waste lands
of the said Epping Forest now uninclosed, or which shall for the
time being be uninclosed, and from carrying away or " otherwise
destroying the loam or soil of the said waste lands now uninclosed, or
which shall for the time being be uninclosed, or the pasture, turf, or
herbage being or growing thereon, so as in any manner to prevent,
disturb, or interfere with the exercise by the Pits, or the other persons
entitled as aforesaid, or any of them, of their said right hereinbefore
declared in and over the waste lands of the said Epping Forest now
uninclosed, or which shall for the time being be uninclosed. 3. From
otherwise preventing, disturbing, or interfering with the exercise by
the Pits, or the other persons entitled as aforesaid, or any of them, of
their said right in and over the waste lands of the said Epping Forest
now uninclosed, or which shall for the time being be uninclosed. Let
the Defts (except the Attorney-General and T. H.) pay to the Pits
their costs of this suit, to be taxed, &c. — ^Liberty to apply. Commis-
sioners of Sewers v. Glasse, L. E. 19 Eq. 134, 164.
Bights of Common— Undertaking — Deed of Arrangement.
The Deft C. A. M. as lord of the manors of Dartford, Dartford
Perry, and Temple Dartford, in the county of Kent, by his counsel
admitting that the Pits and Defts W. D. S., M. S., D. P., and G. H.
as owners of Baldwyn's estate in the Pits' bill mentioned, and all
other, owners of freehold lands and tenements now held freely of
the said manors, are entitled as appendant or appurtenant to their
several tenements aforesaid to a right of common of pasture upon
Dartford Common or Heath for all manner of commonable cattle and
sheep levant and couch ant upon their said tenements, and the said
Deft C. A. M. by his counsel undertaking that he will not in any
one year dig, excavate, cut, or pare any greater quantity or area of
Dartford heath aforesaid than — For gravel 2b., for sand 3p., for loam
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266 INJUNCTIONS.
iR. 20p., for peat 2e. 2p., and for turf 2a. : and that he will observe
the following provisions relative to such digging, excavation, cutting,
and paring, that is to say :
(a.) No digging, excavation, paring, or cutting, except digging
for gravel or sand, to take place during the next two years.
(6.) All excavations for loam and peat and cutting or paring for
turf to be restricted to supplying the inhabitants of the
parishes of Dartford, Wilmingtoii, Bexley, and Crayford, all
in the county of Kent, and to be conducted so as to do as
little damage as possible to the pasturage of the said common
or heath,
(c.) No loam to be dug to a greater depth than nine inches,
(d.) No turf to be pared on ten acres of the heath at the north
west comer used as a cricket ground.
And the said Deft C. A. M. by his counsel also undertaking that he
will not cause, sanction, or permit any further inclosure of or building
upon Dartford Heath except temporarily for the purpose of digging
and excavating as aforesaid, and that he will enter into a deed of
arrangement with the Pits and Defts other than himself embodying
the above terms, in which deed the Eight Hon. C. M. E., Baron Tre-
degar, and his sons G. 0 N. and F. C.' N. who are the persons now
respectively entitled in remainder to the said manors are to be
made parties, to concur (so far as they are respectively interested) in
the general provisions made by this order. Let the said deed of
arrangement be settled by the judge in chambers in case the parties
differ. Let the said Deft C. A. M. cause the said deed of arrangement
when completed to be entered on the court rolls of the said manors
at the Pits' expense. Let all further proceedings be stayed, each party
paying their, his, or her own costs. Minet v. Morgan (M.' E.), June 9,
1874.
Trespass — Wife's Separate Estate— Injunction.
Let an injunction be awarded to restrain the Deft Green and his
agents from receiving or taking any proceedings to recover possession of
the money in the savings bank, or the interest thereof, and from taking
any further and other proceedings by distress or otherwise against the
tenants or occupiers of the pieces or parcels of ground, messuages, or
tenements, hereditaments, and premises, or other the trust estates;
and from receiving the rents and profits thereof, or otherwise inter-
meddling or interfering with the trust estates, furniture, effects,
moneys, and premises ;■ and from continuing in possession of the house
and premises situate, &c., until, &c., or further cider. Green v. Green,
6 Hare, 401, n.
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INJUNCTIONS. 267
Trespass.
Where a deft is in possession of an estate, and a pit claiming possession seeks
to restrain him from acts of spoliation, the Court will not grant an injunction
unless the acts are so flagrant as to justify it in departing from the general
principle : Lowndes v. BeUle, 10 Jur. (N.S.) 226 ; 12 W. R. 399 ; 33 L. J. (Ch.)
451 ; Order, p. 260.
Where a pit is in possession the Court has left him to his remedy at law
against a stranger committing such acts, unless they tended to the destruction
of the inheritance : S. 0.
But where the pit in possession seeks to restrain the deft claiming title, the
tendency of the Court has been to grant the injunction. And where a pit in posses-
sion filed a bill against a deft claiming possession and who threatened to come upon
a property and cut timber, &c., the Court granted a perpetual injunction : S. C. ;
see also Stanford v. Hurlstone, L. E. 9 Ch. 116.
If the trespass does not amount to destructive trespass, but is a case of mere
ordinary naked trespass, the Court of Chancery has declined to interfere, the
Courts of ordinary jurisdiction being competent to deal with the matter : Mogg v.
Mogg, 2 Dick. 670; Oarston v. Asplin, 1 Madd. 152; Jackson v. Stanhope,
15 L. J. (Oh.) 446, cited in Kerr, 293.
The Court wiU interfere by mandatory injunction against trespass : See Man-
datory Injunction, ante, p. 253. The fact that the act complained of is
completed, does not prevent the interference of the Court by injunction : Powell
V. Aiken, 4 K. & J. 343 ; Order, p. 261 ; Bowser v. Madeam, 2 De Gr. F. & J.
415.
This Court will interfere by injunction to restrain acts of trespass by public
companies and public bodies : Blakemore v. Gla/morganshire Canal Navigation,
1 My, & K. 154.
But not where the remedy by damages is sufficient, or where the injury is slight :
Warden of Dover Earhour v. South Eastern By. Co., 9 Hare, 497 ; Wandsworth
Board of Works v. London and South Western By. Co., 8 Jur. (N.S.) 691.
Where a trespass was committed on the pits' mine, and an air course and level
roads made through it underground, the Court interfered by injunction restrain-
ing the defts from continuing the use of the air-course or roads : Powell v. Aikin,
4 K. & J. 343.
And where water pipes had, without the consent of the owner of the soil, been
laid in the soil of a highway, an injunction to restrain the continuance of the
pipes was granted : Qoodson v. Bichardson, L. R. 9 Ch. 221 ; Order, p. 263.
The owner in fee of a garden over which the tenants of his adjoining houses
had rights of enjoyment and management, has been granted an injunction re-
straining trespass involving nuisance committed by a person acting under colour
of a contract with the tenants : Allen v. Martin, L. E. 20 Eq. 462,
The Court has granted a mandatory injunction restraining a man from per-
mitting a building erected on the roof of a neighbour's house to remain there :
Martyr v. Laurence, 3 De G. J. & S, 261, cited in Kerr, 331 ; Order, p, 260.
And a man has beenrestrainei at the suit of his wife from continuing in pos-
session of a house which formed part of her separate estate : Qreen v. Pledger,
5 Hare, 400, n. ; Order, p. 266,
The Court will enforce by injunction the provisions of the 115th and 117th
sections of the Railways Clauses Consolidation Act as regards engines improper
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268 INJUNCTIONS.
to he used, and carnages belonging to another company : Midland By. Co. v.
Ambergate By. Co., 10 Hare, 359 ; Bhymney By. Co. v. Taff Vale By. Co.,
29 Beav. 153 ; 9 W. E. 362.
NUISANCE.
General Eights to Injunctiok.
The Court will not interfere by injunction if the damage is slight, and the
nuisance merely of a temporary character: Kerr, 338; AU.-Gen. v. Sheffield Gas
Co., 3 De G. M. & G. 304 ; Qoldsmid v. Tunhridge Wells Commissioners, L. E.
1 Ch. 349 ; Att.-Oen. v. Borough of Birmingham, 4 K. & J. 546 ; Durell t.
Pritchard, L. E. 1 Oh. 244 ; St. Helen's Smelting Co. v. Tipping, 11 H. L. 0.
650; Gaunt v. Finney, L. E. 8 Oh. 8.
And will not interfere to restrain damage caused by a public company in the
construction of their works, if the injury is the necessary result of the exercise of
their statutory powers : Sutton v. London omd South Western By. Co., 7 Hare,
259 ; Langham v. Oreat Northern By. Co., 1 De G. & Sm. 485 ; Imperial Oas
Co. V. Broadbent, 7 De G. M. & G. 459.
But where proper care is not shewn an injunction will lie : Ware v. Begent'b
■Canal Co., 3 De G. dc J. 227.
Bills to restrain nuisances have been entertained in the following cases, cited in
Kerr, 348 : Drainage Commissioners, Earl of Bipon v. Eohart, 3 My. & K. 169 ;
Commissioners of Woods and Forests, Squire v. Camphell, 1 M. & 0. 459 ; Con-
servators of the Thames, Att.-Oen, v. Conservators of Thames, 1 H. & M. 1 ;
Boards of Health, Manchester By. Co. v. Worksop Board of Health, 23 Beav.
198 ; Trustees of Turnpike Eoads, Weeks v. Howard, 10 W. B. 577 ; the Secre-
tary at War, Felkin v. Herbert, 30 L. J. (Ch.) 604 ; Metropolitan Board of
Works, Att.-Gen. v. Metropolitan Board of Works, 33 I;. J. (Ch.) 377 ; 11 W. E.
820; 2 N. E. 312 ; and Highway Boards, Att.-Gen. v. Bichmond, L. E. 2 Eq.
306.
Upon an information to restrain a public nuisance, properly so called, it must
be shewn that the nuisance is actual and existing, not merely prospective, how-
ever strongly the apprehension of injury may be supported by scientific evidence :
Att.-Gen. v. Mayor of Kingston, 11 Jur. (N.S.) 596 ; 13 W. E. 888.
After the establishment of the right at law, and the fact of its violation, a man
is entitled to a perpetual injunction in the absence of special circumstances : Im-
perial Oas Co. V. Broadbent, 7 H. L. C. 612.
A person seeking an injunction to restrain an injury to his legal rights must
apply to the Court without delay. Where the injury has been completed at the
time of filing the bill the Court has left the parties to their remedy at law :
Deere v. Guest, 1 M. & 0. 516 ; Lawrence v. Austin, 11 Jur. (N.S.) 576 ;
13 W. E. 981.
But where the damage done is great, the mere fact that the injury was com-
pleted before the filing of the bill does not disentitle the pit to a mandatory
injunction : Dwrell v. Pritchard, L. E. 1 Ch. 244 ; City of London Brewery Co.
V. Tennant, L. E. 9 Ch. 212.
And where a pit has come in time as to part of his case, an inquiry has been
■directed as to damages occasioned by so much of the injury as was completed
previously to the filing of the bill : Hindley v. Emery, 11 Jur. (N.S.) 878 ; 14
W. R. 25.
The fact of a man having " come to a nuisance " does not disentitle him to an
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INJUNCTIONS. 269
injiiDotion : Tipping v. St. Helen's Co., L. E. 1 Ch. 66 ; 11 H. L. C. 642 ;
Order, p. 270.
And where a vendor sold land witli the knowledge that the purchasers intended
to erect copper works upon it, the vendor and persons claiming under him were
held not debarred from equitable relief in respect of the nuisance occasioned to
other parts of the property : S. C.
But where a pit seeks, on the ground of smoke nuisance, to stop a large com-
mercial work, the evidence must shew a present injury visible or sensible to
ordinary persons, and such an injury as would entitle a jury to give substantial
damages : Salvin v. North JBrancepeth Coal Co., L. R. 9 Oh. 705, 707 ; see also
St. Helen's Smelting Co. v. Tipping, 11 H. L. 0. 642.
If the evidence is satisfactory, the Court will grant an injunction against a
nuisance without having the question whether there is a nuisance tried before a
jury : Jnchball v. Barrington, L. B. 4 Ch. 388.
Light and Aie.
Light and Air — Injunction — Beferences to Chambers as to pulling down
Buildings erected.
Let a perpetual injunction be awarded to restrain the Deft Charles
Jack, his agents, workmen, and servants, from erecting any building
upon the site of the premises known as Downes Wharf in the pleadings
mentioned, so or in such manner as to darken, injure, or obstruct any
of the ancient lights or windows of the Pits' messuage known as
Nos. 3 and 4, Lower East Smithfield, as the same ancient lights and
windows were enjoyed previously to the taking down of the ancient
buildings which formerly stood on Downes Wharf aforesaid. And the
Pits and Deft respectively are to be at liberty to apply as they may
be advised to the judge at chambers with reference to the pulling
dovrai of any of the buildings which have already been erected by the
Deft, so as to darken, injure, or obstruct any of the said ancient lights
or windows, as the same were enjoyed previously to the taking down
of the said ancient houses or buildings, and with reference to the
erection of any buildings on the Deft's property, but not so as to
infringe the said injunction. Deft to pay to Pits their costs of suit up
to and including decree. Yates v. Jack, L. E. 1 Ch. 295.
Similar Order — Reference to Chambers as to erection of New Buildings.-
Let a perpetual injunction be awarded to restrain the Defts the
City Offices Company (Limited), their agents, servants, and workmen,
from erecting any building in front of the messuages Nos. 11 and 12,
Clement's Lane, Lombard Street, London, so or in such manner as to
darken, injure, or obstruct any of the ancient lights or windows of the
said messuages, as the same ancient lights or windows were enjoyed
previously to the taking dovro of the ancient houses or buildings
which formerly stood in front of the same messuages. And the Defts
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are to be at liberty to apply to the judge at cbambers as they may be
advised with respect to the erection of any building on their property,
but so as not to infringe the said injunction. Let the Defts the City
OfiSces Company pay to the Pits their costs of suit, to be taxed, &c. —
Liberty to apply. Stokes v. City Offices Go. (V.-C. W.), 11 Jur. (N.S.)
660.
Light and Air — Injunction.
Let an injunction be awarded against the Deft to restrain him, his
servants and agents, until further order from erecting any building on
the land leased to him by the Merchant Taylors' Company as in the
Pits' bill mentioned, so as to darken, hinder, or obstruct the free
access of light and air to the windows of the Pits' building mentioned,
as such access was enjoyed by the Pits and their predecessors in title
and other the occupiers of the said building previously to the taking
down by the Deft of the houses or buildings which formerly stood on
the ground so leased to the Deft as aforesaid. Deft to pay costs of
suit. Dyers' Co. v. King (V.-C. J.), Feb. 9, 1870.
Air — Noxious Vapours — Injunction.
Let an injunction be awarded against the Defts the St. Helen's
Smelting Company (Limited) to restrain the said company, their
servants, workmen and agents, from and after the 10th November, 1865,
from using, or causing or permitting to be used, the copper smelting
works in the Pit's bill mentioned, or any part of them, so and in such
manner as that any vapour or smoke may be emitted therefrom to the
injury or damage of the timber, plantations, gardens, pleasure grounds,
and crops upon the Bold Hill estate in the Pit's bill mentioned, or any
of them. Tipping v. St. Helen's Co. (V.-C. W.), July 21, 1865 ; L. E.
1 Ch. 66.
lAglit and Air — Injury completed^-Declaration of Bight to Damages —
^Inquiry.
Declare that the Pit is entitled to compensation for the damage
which he has sustained and- may sustain by reason of the erection by
the Deft of the walls and house in the Pit's bill mentioned, and decree
the same accordingly. Let an inquiry be made what is the amount
of the damage so sustained by the Pit. Let the Deft John Headon pay
to the Pit Alfred Martin what shall be found due to him for such
damages, and also his costs of this suit, including therein the costs of
and relating to the applications for an injunction, &o., to be taxed, &c.
Martin v. Headon, L. E. 2 Eq. 425.
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lAgM and Air — Injury completed — Inquiry as to Compensation.
Declare that the Defts having caused damage and injury to the Pit
by the ohstruction occasioned by their buildings, and having interfered
with the access of air and light to the ancient windows of the Pit's
house, called the Mulberry Tavern, at Sheffield, an inquiry ought to be
made what amount of compensation should be paid to the Pit in respect
of that damage and injury.
Let an inquiry be made accordingly what proper sum should be
paid to the Pit in compensation, such sum to be certified and to be
paid to the Pit within one month from the date of the chief clerk's
certificate. Deft to pay costs. — Liberty to apply. Senior v. Pawson,
L. E. 3 Eq. 330.
Light and Air — Injunction — Inquiry — Removal of Buildings.
Let a perpetual injunction be awarded against the Defts to restrain
them, their servants, &c., from erecting any building so as to darken,
hinder, or obstruct the free access of light and air to the ancient
windows of the Pits as such access was enjoyed previously to the
taking down by the Defts of the houses or buildings which formerly
stood on the ground of the Defts adjoining to the property of the
Pits. Let an inquiry be made whether any and what buildings have
been erected by the Defts which materially interfere with the access of
light and air to any of the windows in the Pits' messuage.
Order the Defts to remove such buildings (if any) under the direc-
tion of the judge in chambers.
Let the Defts be at liberty to apply to the judge in chambers as they
may be advised with respect to the erection of any buildings on their
property, but so as not to infringe the said injunction. Defts to pay
costs of suit. — General liberty to apply. Bent v. Avuition Mart Co.,
L. E. 2 Eq. 238.
Air — Noxious Vapours — Injunction.
Let an injunction be awarded to restrain the Defts, their directors,
managers, engineers, and servants, from and after the 1st January,
1837, and thenceforth during the continuance of any interest of the
Pit in the premises under the lease dated the 13th November, 1850, in
the pleadings mentioned, from manufacturing gas or coke in or upon
any retort-house, building, or site situate nearer to the Pit's premises
than the retort-house used by the Defts previously to the year 1851,
in such manner as to allow the escape of any steam, gas, or other
matter noxious to the vegetation in the Pit's ground demised by the
said lease. Broadbent v. Imperial Gas Co. (V.-C. W.), 7 De G. M. & G.
436.
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272 INJUNCTIONS.
Light and Air — Noiae — Mandatory Injunction.
Let an injunction be awarded against the Defts A. B., A. W., and
W. D., to restrain the said Defts from permitting so much of the shed
erected by them as in the bill mentioned, on the piece of land separated
from the rear of the chapel of which the Pits are trustees, as in the
bill mentioned, by the passage of 13ft. 9in. wide, to remain as intercepts
or obstructs the free and uninterrupted passage of light and air to the
Pits' premises in the bill mentioned, so as to interfere with the com-
fortable enjoyment of such premises as they were enjoyed before the
erection of the said shed, and perpetually to restrain the said Defts,
their servants, agents, and workmen, from carrying on the business
of the Defts in the bill mentioned in such a manner as to interfere
with the reasonable use of the said chapel and premises by the Pits
or persons claiming under them, and in particular from allowing to
be made or continued any noise substantially interfering with the due
carrying on of the religious services and ceremonies, and the due
holding of meetings and day and Sunday schools on such premises,
and the due user of such premises for such other purposes as the said
premises may lawfully be used for ; but such injunction is not to be
issued until after the 26th February, 1876. Defts to pay costs of suit.
Baxter v. Bower (V.-C. B.), Jan. 26, 1875.
Liglit and Air.
Where the access and use of light to and for any dwelling-house, workshop, or
other building, shall harye been actually enjoyed therewith for the full period of
twenty year.s without interruption, the right thereto shall be deemed absolute and
indefeasible, any local usage or custom to the contrary notwithstanding, unless it
shall appear that the same was enjoyed by some consent or agreement expressly
made or given for that purpose by any deed or writing : 2 Will. 4, c. 71, s. 3.
The right conferred by this Act is an absolute indefeasible right to the enjoy-
ment of light without reference to the purpose for which it has been used : Tates
V. Jack, L. E. 1 Ch. 298 ; Order p. 269 ; Oalcraft v. Thompson, 15 W. R. 387.
The right when acquired is not lost by a temporary intermission of enjoyment
not amounting to abandonment : TapKng v. Jones, 11 H. L. C. 290.
The statute 2 & 3 Will. 4, c. 71, does not take away any of the modes of
claiming easements which existed before the Act, and the title to access of light
may be proved by enjoyment of it from time immemorial independently of the
statute : Aynsley v. Glover, L. E. 18 Bq. 544 ; L. R. 10 Ch. 283.
And where the right is proved to the entry of light to ancient windows the
enlargement of those windows does not vitiate the right of entry of light to the
old part : S. C. See also TapUn v. Jones, 11 H. L. 0. 290 ; Straight v. Bicrn,
L. E. 5 Ch. 163, 167.
To constitute at common law an illegal obstruction of light by building it is
not sufficient that the pit has less light than before, or that the part of his house
principally affected cannot be used for all its original purposes : Back v. Stacey,
2 C. & P. 465,
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INJUNCTIONS. 273
Unless the abridgment of light is not only a substantial injuiy, but an injury
not capable of being properly and adequately compensated by damages, the Court
of Chancery will not interfere : Ourriers' Co. v. Oorlett, 11 Jur. (N.S.) 719 ; Bent
V. Auction Mart Go., L. B. 2 Eq. 238 ; Robson, v. Whittingkam, L. R. 1 Ch. 442.
But there is no rule which prevents the Court from granting a mandatory in-
junction when the injury sought to be restrained has been completed before the
filing of the bill. And there is no difference in this respect between an injury to
easements and other rights: Durell v. Pritchard (L. J. S.), L. B. 1 Ch. 244;
Martin v. Htadon, L. E. 2 Eq. 425.
Where a house was in a populous town, the Court took that fact into consi-
deration in estimating the damage done by obstructing an ancient light : Glarhe
V. Olarh, L. B. 1 Ch. 16.
But it has been subsequently held that there is no distinction between the right
to light and air in regard to town houses and country houses : Yates v. Jack, L. E.
1 Oh. 295 ; Dent v. Amtion Mart Co., L. B. 2 Eq. 238 ; Mwrtin v. Eeadon,
L. E. 2 Eq. 425 ; Orders, p. 269, 270, 271.
The Court will not restrain the erection of a building merely because it
deprives an ancient window of some portion of light : Clarke v. Clark, L. E. 1
Ch. 16.
But will do so where the obstruction is to sufficient light for the comfortable
use and enjoyment of the house as a dwelling-bouse, if it be a dwelling-house, or
for the beneficial use and occupation of the house, if it be a warehouse, shop, or
other place of business ; Clarke v. Clark, L. B. 1 Ch. 16 ; Yates v. Jack, L. E. 1
Ch. 295 ; Kelk v. Pearson, L. E. 6 Ch. 809 ; City of London Brewery Co. v.
Tennant, L. E. 9 Oh. 212 ; Hackett v. Baiss, L. E. 20 Eq. 494.
A greater amount of evidence is needed to prove a material injury to light by
lateral or oblique obstruction than is necessary in a case of direct obstruction :
Clarke v. Clark, L. E. 1 Oh. 16 ; City of London Brewery Co. y. Tennant, h. E.
9 Oh. 212, 220.
There is no general rule that there can be no material injury to light if forty-
five degrees of sky are left open. But if forty-five degrees are left, it is prima
facie evidence that the light is not seriously obstructed : Beadel v. Perry, L. E.
3 Eq. 465 ; City of London Brewery Co. v. Tennant, L. E. 9 Ch. 212, 220.
The Court, when considering (as a jury) whether sufficient damage is proved to
sustain an injunction, is not bound by the finding of the Appeal Court upon
somewhat similar facts to the same extent as it is bound by a decision on a point
of law : Bent v.' Auction Mart Co., L. B. 2 Eq. 238.
Where the Court was not satisfied from the evidence whether a wall proposed
to be built by a deft would be a material obstruction to the pit's lights," a tempo-
rary screen was ordered to b6 erected to the height of the proposed wall, and a
surveyor appointed to report : Leech v. Schweder, L. E. 9 Ch. 463.
There is no difference in 'the right of an owner of land to the ordinary easement
of light, whether it is acquired by twenty years' user or by grant from the owner
of the servient tenement : S. 0.
In an action for nuisance to property arising from noxious vapours, the injury,
to be actionable, must be such as visibly or sensibly and substantially injures the
property : >S*. Bfelen's Smelting Co. v. Tipping, 11 H. L. 0. 642 ; Salvin v. North
Branoepeth Coal Co., L. B. 9 Oh. 705.
Where a pit has proved his right to an injunction against a nuisance it is no
part of the duty of the Court to inquire in what way the deft can best remove it :
Att.-Oen. V. Golney Hatch Lunatic Asylum, L. E. 4 Ch. 146.
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274 INJUNCTIONS.
And a reference to an expert under 15 & 16 Vict. e. 80, s. 42, is improper :
Att.-Gen. v. Golney Hatch Lunatic Asylvm,, L. E. 4 Ch. 146.
When the difficulty of removing the injury is great, the operation of the in-
junction is often suspended : S. C.
Water.
Corporation — Brcdnage — Injimction — Liberty to apply.
Let the Defts be restrained nntil furtlier order from opening any-
additional main or branch pnhlic sewer into either of the main sewers
in the bill and information and affidavits mentioned. Liberty for
either party to apply. And in the event of the Defts not proceeding
forthwith to take such steps as may be necessary and proper (due
time being allowed for that purpose) to prevent the continuance of
the nuisance complained of by the information and bill (that is to
say), to prevent the pollution of the Eiver Tame, so to render it
injurious to the health of the inhabitants of the lands adjoining its
course, and also to prevent it being so polluted as to become offensive
and unfit for use or injurious to health where it passes through the
grounds of the Pit and relator, the Pit to be at liberty to apply on
the first day of Michaelmas Term for an extension of the injunction.
Att.-Gen. v. Borough, of Birmingham, 4 K. & J. 528.
Corporation, — Diversion of Stream — Lands Glauses Act — Injunction.
Let an injunction be awarded against the Defts the mayor, alder-
men, and burgesses of the borough of Bradford, to restrain them, their
servants, agents, and workmen, until the hearing of this cause or
further order, from diverting, abstracting, taking, or using, or con-
tinuing to divert, abstract, take, or use, any of the water of the Swain
Eoyd Stream in the Pit's bUl mentioned without first making pay-
ment to the Pit of the purchase-money or compensation payable for
the Pit's interest in such stream, in case the same shall have been
agreed upon or duly ascertained, or making such deposit by way of
security, and giving such bond, as under the Lands Clauses Consolida-
tion Act, 1845, must be made and given by the promoters of an
undertaking in order to entitle them to enter upon and use lands
without the consent of the owners or occupiers before paying the
purchase-money or compensation agreed or awarded in respect thereof.
Ferrand v. Mayor of Bradford, 21 Beav. 412.
Bunning Stream — Refuse — Injunction.
Let a perpetual injunction be awarded against the Defts the Stow-
market Cfompany to restrain the said Defts, their servants, agents, and
workmen, from discharging from their works in the Pit's bill men-
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INJUNCTIONS. 275
tioned into the river or stream in the said bill also mentioned, so as to
cause it to flow to the Pit's land, messuage, and mills therein also
mentioned in a state less pure than that in which it flowed there pre-
viously to the establishment of the said worts, to the injury of the Pit,
any such refuse or other matter as was discharged by the Defts from
the same works into the said river or stream previously to the filing
of the said bill, or any noxious fluids or other fecal matters whatever.
Lingwood v. Stowmarhet Co., L. E. 1 Bq. 77, 336.
Bunning Stream — Sewage and Gas Works — Injvmction.
Let a perpetual injunction be awarded against the Defts to restrain
them, their agents, servants, and workmen, from allowing any sewage
from the County Lunatic Asylum at Colney Hatch to pass or flow
down their drains or pipes into the stream called Pim's or Pymm's
Brook in the bill mentioned so as to be a nuisance. But the injunc-
tion hereby awarded is to be suspended until the first day of Trinity
Term next. And the Defts are to be at liberty to apply before that
day, that the said injunction may be further suspended. Att.-Gen.
V. Colney Hatch Lunatic Asylum, L. E. 4 Ch. 146.
Bunning Stream — Diversion of Water — Perpetual Injunction.
Let a perpetual injunction be awarded against the Deft E. D. and
the local board of health of the town of Barmouth, in the county of
Merioneth, to restrain the said Deft and the said local board, their
contractors, servants, workmen, and agents, from abstracting and
diverting the water from the stream or brook called or known as Oeil-
wart Brook, in the Pit's bill mentioned, in any manner so as to inju-
riously aficct the said stream or brook, or the Supply of water flowing
in it, into, over, and through the Pit's farm and lands called Ceilwart
1 ssa, and a cottage called the Mill Cottage, situate in the parish of
Llanaber, in the county of Merioneth aforesaid, in the Pit's bill
mentioned. Let the operation of the said injunction be suspended
until the — day of — . Owen v. Bavies (M. E.), July 24, 1874.
Biver Water — Biparian Proprietors — Injunction — Inquiry as to Damages-
Let an injunction be awarded against the Defts Thomas Lightowler,
Joseph Lightowler, John Lightowler, James Collerton, and Dickinson
Collerton, their servants, workmen, and agents, from causing or
sufiering any foul water to flood from their dye-works in the Pits' bill
mentioned into the Eiver Hibble above or within the limits of the
land adjoining the said river purchased by the Pits from the Defts
Eobert Edleston and Dickinson Edleston so as to afiect the water
opposite to the said land to the damage and injury of the Pits as
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276 INJUNCTIONS.
owners of the said land and a moiety of the said river opposite thereto.
[And also to restrain the said Defts, their servants, workmen, and
agents, from causing or suffering any foul water to flow from their
said works into the said Eiver Hibble so as to affect the water drawn by
the Pits from the said river for the use of their dye-works at Dean
Clough Mills in the said bill mentioned, to the damage or injury of
the Pits.]
Let an inquiry be made whether any and what damage has been
sustained by the Pits by reason of the said Defts permitting or causing
any such foul water to flow from their said works since the 19th May,
1866. — Direction for payment of costs of suit by Deft up to hearing.
Crossley v. Lightowler (V.-C. W.), Nov. 13, 1866, varied on appeal by
omitting clause bracketed, L. K. 2 Ch. 473.
Canal Company — Stagncmt Water — Injunction.
Let a perpetual injunction be awarded against the Defts, the com-
pany of proprietors of the Bradford Navigation, Jeremiah Crowther,
and Samuel Dixon, to restrain them, their servants, workmen, and
agents, from diverting into the canal from Bradford to join the Leeds
and Liverpool Canal at WindhiU, in the township of Idle, in the
county of York, or allowing to pass into the same, or collecting or
keeping or continuing therein any filth, sewage, or polluted matter or
water, so as to be a public nuisance. But the injunction hereby
awarded is not to take effect until the 8th November next. —Direction
for payment of costs of suit by Deft. Att.-Qen. v. Bradford Canal Co.,
L. E. 2 Eq. 71.
Corporation — Sewer — Statutory Bights of Owner — Injunction.
Let the Defts be restrained until, &c., from causing or permitting
any sewer or drain to be opened into the new sewer in Yorkshire
Street, or any other new sewer to open or drain into the Eiver Eoche
at any point above the Town Mill Weir, and from allowing any new
sewer to open or drain into the Lordburn, in the bill mentioned. Holt
V. Corporation of Bochdale, L. E. 10 Eq. 354, 358.
Metropolitan Board of WorJcs — Main Drainage — Injunction.
Let an injunction be awarded to restrain the Defts the Metropolitan
Board of Works, their agents, workmen, and servants, from making
any further connection of any drain with either the High Level Sewer
or the Middle Level Sewer in the bill mentioned until the hearing of
this cause or further order. And the said Defts by their counsel
undertaking by dredging or other proper means to keep the Eiver Lea
from all obstructions to navigation occasioned by an increased deposit
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INJUNCTIONS. 277
of sewage matter arising from the connection made since the month of
February, 1863, of any sewers with either the High Level Sewer or
the Middle Level Sewer, Let the further hearing of this motion stand
over until the hearing of this cause, with liberty for either party to
apply in the meantime, especially in respect of any injury that may be
apprehended from the unhealthy effluvia arising from the increase of
sewage matter brought down the Middle Level Sewer. Ait.-Gen. v.
Metropolitan Board of Works, 11 W. E. 820 ; 2 N. E. 312.
Board of Health — Side Sewer — -Injunction.
Let an injunction be awarded to restrain the Defts until, &c., from
permitting to remain open and from opening or permitting to be opened
any side sewer or other sewer into the main sewer in the Pits' bill
mentioned so long as the said main sewer shall flow through the
covered drain in the Pits' bill mentioned or otherwise discharge itself
into the canal of the Pits. Let the Pits be at liberty to bring such
action as they may be advised, such action to be brought within a
year from this date. Manchester By. Co. v. Worlcsop Board of Health,
23 Beav. 198.
Water — Bunning Streams, <&c.
The continuous enjoyment as of right of a watercourse, or the use of water as
an easement, over or from any land or water for twenty years next before the
commencement of some suit or action in which the claim has been brought in
question, without interruption, acquiesced in for a year, is evidence from which' a
jury is justified in presuming a right : 2 & 3 Will. 4, c. 71, ss. 2, 4.
Prima facie every proprietor of land along the margin of a river or stream of
running water above tide water is the proprietor of land covered by the water up
to the middle thread of the stream : Kerr, 377.
The diversion by a riparian proprietor of any portion of the stream without
returning the water to its natural channel before it leaves his land is an illegal
user : Bealey v. Shaw, 6 East, 208.
The right of a riparian proprietor does not depend upon the ownership of the
soil covered by the water, but is appurtenant to the ownership of the bank : Lord
V. Commissioners of Sidney, 12 Moo. P. 0. 473 ; Stockport Waterworks Co. v.
Potter, 3 H. & 0. 300.
Every riparian proprietor has a right to use the water flowing past his land for
any purpose, or an <-xtraordinary use, provided he does not interfere with the
rights of proprietors above or below. Subject to this condition he may dam up
the stream for the purpose of a mill, or divert it for the purpose of irrigation, bi^t
he has no right to interrupt the regular flow of the stream if he thereby interferes
with the lawful use of the water by other proprietors and inflicts upon them a
sensible injury : Miner v. Oilmour {per Lord Kingsdown), 12 Moo. P. 0. 131.
See also Elmliirst v. Spencer, 2 Mac. & G. 45 ; Mayor, &c., of Liverpool v.
Charley Waterworks, 2 De G. M. & G. 852 ; Elwell v. Crowlher, 8 Jur. (N.S.)
1004; 10 W. E. 615 ; Bichett w. Morris, 12 Jur. (N.S.) 803 ; Lord Norhury v.
Kitchen, 9 Jur. (N.S.) 132.
And a riparian proprietor has a right to have the water of a natural stream run
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278 INJUNCTIONS.
through his land in a natural state of purity : Beaky v. Shaw, 6 East, 208 ;
Wright V. Howard, 1 Sim. & Stu. 190 ; Grossley v. Lightowler, L. E. 3 Bq. 279 ;
L. E. 2 Ch. 478 ; Order, p. 275 ; Lingwood v. Stowmarket Company, L. E. 1 Bq.
77 ; Order, p. 274.
Mere non-user, for less than twenty years, of a prescriptive right to foul a
stream is not in itself a proof of abandonment. But actual disuser of the ease-
ment for twenty years destroys the right to it : Crossley v. Lightowler, L. E.
3 Eq. 279 ; L. E. 2 Ch. 478.
For cases of encroachments in navigable tidal rivers, see Hex v. Mussdl, 6 B. &
C. 566 ; Rex v. Ward, 4 Ad. & B. 384 ; Brownlow v. Metropolitan Board of
Worhs^lZ C. B. (N.S.) 768 ; 16 C. B. (N.S.) 546; Kearna v. Cordwainers' Go.,
6 C. B. (N.S.) 388 ; Macey v. Metropolitan Board of Works, 33 L. J. (Ch.) 377 ;
Att.-Oen. V. Conservators of Thames, 1 H. & M. 1 ; Att.-Qen. v. Terry, L. E.
9 Ch. 423 ; Lyon v. Fishmongers' Co., h. E. 10 Ch. 679.
The owner of land at the side of a public navigable river has no right to erect
on the bed of the river for the benefit of his trade any structure, whether an actual
obstruction to navigation will be thereby occasioned or not : Att.-Qen. v. Terry,
L. B. 9 Oh. 423.
The owners of land on the banks of tidal rivers have only rights to the river as
one of the public, and have no easements or private rights similar to those of
owners of land on the banks of inland streams : Lyon v. Fishmongers' Co., L. E.
10 Ch. 679.
Noise and Noisy Trades.
Music and Fireworlea — Injimction.
Let a perpetual injunction be awarded to restrain the Deft Joseph
Shaw Brewster, his servants, workmen, and agents, from continuing to
hold and from, permitting to be held upon the grounds in the Pit's bill
mentioned as being in the occupation of the said Deft any public
exhibition or other entertainment whereby a nuisance may be occa-
sioned to the annoyance or injury of the Pit. WaLher v. Brewster
(V.-C. W.), L. E. 5 Eq. 25.
Bell-ringing — Injunction.
Let an injunction be awarded to restrain the Deft De Held, and all
persons acting under his direction or by his authority, until, &c., from
tolling or ringing the bills in the Pit's bill mentioned or any of them,
so as to occasion any nuisance, disturbance, and annoyance to the Pit
and his family residing in his dwelling-house at Park Eoad, Clapham,
in the Pit's bill mentioned. SoUau -v. Be Meld, 2 Sim. (N.S.) 133.
Circus — Injunction.
Let an injunction be awarded against the Deft J. B. to restrain him,
his servants, workmen, and agents, from using the circus in the Pit's
bill mentioned, or any other erection or building erected or built, or
to be erected or built, in the Fair Field in the Pit's bill mentioned
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INJUNCTIONS. . 279
for any equestrian performance or other public entertainment, whereby
a nuisance or annoyance may be occasioned to the Pit. Inchhald v.
Barrington (V.-C. M.), Dec. 15, 1868 ; affirmed L. E. 4 Ch. 390.
Noise, and Noisy Trades.
Mere noise, as well as the conduct of a, noisy trade, may be subject for an in-
junction : White v. Gohen, 1 Drew. 313 ; Eaden y. Mrth, 1 H. & M. 573 ;
Crump V. Lambert, L. E. 3 Eq. 309, So, too, bell ringing may be a nuisance and
proper subject for injunction : Soltau v. De Held, 2 Sim. (N.S.) 133 ; Order,
p. 278. So, too, a circus : Inchbald v. Barrington, L. E. 4 Ch. 390 ; Order, p. 278 ;
and the erection of mortar mills, steam engines, and pumps : Fenwich v. East
London By. Co., L. E. 20 Eq. 144 ; and the unusual use of a house : Ball v.
Bay, L. E. 8 Ch. 467.
The collection of a crowd of noisy and disorderly people, to the annoyance of
the neighbourhood, outside grounds in which entertainments with music and fire-
works are given for profit, is a nuisance liable to injunction : Waiker v. Brewster,
L. E. 5 Eq. 25 ; Order, p. 278.
The Lands Clauses Consolidation Act and the Eailways Clauses Consolidation
Act do not contain any provisions under which a person whose land has not been
taken for the purposes of a railway can recover statutory compensation from the
railway company in respect of damage or annoyance arising from vibration occa-
sioned (without negligence) by the passing of trains, after the railway is brought
into use, even though the value of the property has been actually depreciated
thereby (diss. Lord Cairns) : Hammersmith and City By. Oo. v. Brand, L. E.
4 H. L. 171.
Nuisance to Sight of Way.
Declaee that the Pit and the Defts have an equal and reciprocal
right to the use of the roadway from — to — -, and that the persons
interested therein have not, nor have any of them, any preferential
right of way, and that the necessity or urgency of their particular
trade or business does not give them any right to occupy the said
roadway by stationary obstruction, when the passage is required by
any other person having the right of using such roadway. Declare
that it is the duty of all the parties interested in the said right of
way so to arrange the use of the same as best to facilitate the use of
it for the others interested therein; and that the said persons in-
terested therein are not entitled to place or leave any stationary
obstruction in such roadway, except at such times as the use thereof
is not required for any other of the persons interested therein ; and if
when so occupied the use of the roadway is required by any other
person entitled to use the same, the person placing such obstruction
in the roadway is bound forthwith to remove the same.
Let an injunction be awarded to restrain the Defts and any persons
interested in the said roadway, their respective servants and agents,
from placing or leaving any stationary obstruction in the said road-
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280 INJUNCTIONS.
way, except at sucli time as the use thereof is not required for any
other of the persons interested therein, and from making use of the
said roadway in any manner inconsistent with the meaning of the
said declarations. Thorpe v. Brumfitt (M. E.), 1873 ; affirmed L. K.
8 Gh. 650.
For cases in respect of nuisances to rights of way, see Vestry of St. Mary,
Newington v. Jacobs, L. R. 7 Q. B. 47; Swaine v. Great Northern By. Co.,
4 De a. J. & S. 211 ; Watts v. Kelson, L. E. 6 Ch. 166 ; Eext v. aUl, L. E. 7 Oh.
699, 711 ; Oaunt v. Fynney, L. E. 8 Ch. 8 ; Thorpe v. Brumfitt, L. E. 8 Ch.
650; Order, supra.
Nuisance in respect of Eisht to Suppoet.
Mailway Company.
Let a perpetual injunction be awarded to restrain the Deft from
working any of the minerals referred to in his notice in the pleadings
mentioned, or any other minerals tO the support of which the Pits are
entitled under their contracts dated, &c., in such a manner as to
occasion damage to the railway or works of the Pits by the abstraction
of such minerals. North, Eastern By. Co. v. Grostland, 2 J. & H. 666 ;
32 L. J. (Ch.) 357.
Bight to Support.
The right to the support of land in its natural state, vertically by the subja-
cent strata, and laterally by the adjacent soil, is a right to which the owner of
the surface is of common right entitled : Kerr, 366 ; Bowbotham v. Wilson,
8 H. L. C. 348 ; Elliott v. North Eastern By. Co. 10 H. L. 0. 333.
And a right to support of soil in excess of the ordinary common law right
arises by implication of law, where the owner of the land has granted the surface,
reserving to himself the subjacent minerals ; or has granted any part of his land,
retaining the adjoining part : Kerr, 369 ; Caledonian By. Co. v. Sprott, 2 Macq.
449.
A landowner who has conveyed land to a railway company for the purposes of
the line, although reserving to himself the minerals, cannot derogate from his own
conveyance and let down the surface : North Eastern Ry. Co. v. Grassland, 2
J. & H. 565; 32 L. J. (Ch.) 357; Order, supra; Elliott v. North Eastern By.
Co. 10 H. L. C. 333.
But the parties may in granting a piece of land agree to reserve the minerals
to the grantor, and allow him so to work them as to damage the surface. It is a
question of contract, and of contract not repugnant to law : Harris v. Bydding,
5 M. & W. 60 ; Smart v. Morton, 5 B. & B. 30 ; ffext v. Chill, L. R. 7 Ch. 699 ;
Duke ofBuccleugh v. Wakefield, 4 H. L. C. 377 ; Aspden v.Sedden, L. E. 10 Ch.
394.
As to right of support between adjoining houses, see Bichards v. Bose, 9 Ex.
218.
As to party walls, see Matfs v. Hawkins, 5 Taunt. 20 ; Cnhitt v. Palmer,
8 B. & C. 257 ; Steadman v. SmUh, 8 E. & B. 1 ; Kerr, 376. See also Metro-
politan Buildings Act, 18 & 19 Vict. c. 122.
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For cases where railway companies have power to stop workings when within a
certain distance of the surface, and to purchase the rights of the owner of the
minerals, but have declined to do so, see Dudley Canal Co. v. Orazehrook, 1
B. & A. 59 ; Stourbridge Canal Co. v. Earl of Dudley, 3 E. ijc B. 409 ; London
and North Western By. Co. v. Ackroyd, 38 L. J. (Oh.) 588. See also Railways
Clauses Consolidation Act, 8 & 9 Vict. c. 20, ss. 77-79.
BREACH OF AGREEMENT OR COVENANT.
Negative Govenant — Professional Services at Opera^
Let an injunction be awarded to restrain the Deft Johanna Wagner
from singing or performing at the Eoyal Italian Opera, Covent Garden,
or at any other theatre, without the sanction or permission in writing
of the Pit during the existence of the agreement dated the 9th Nov.,
1851, in the pleadings mentioned, and to restrain the Deft Frederick
Gye in like manner from accepting the professional services of the
said Dft Johanna Wagner as a singer and performer or singer at the
said Eoyal Italian Opera, Covent Garden, or at any other theatre, and
from permitting her to sing and perform or to sing at the said Eoyal
Italian Opera, Covent Garden, during the existence of the said agree-
ment of the 9th Nov., 1851, with the Pit, without the permission or
sanction of the said Pit. Tjumley v. Wagner 1 De G. M. & G. 604.
Agreement — Monthly Magazine — Injunction.
Let an injunction be awarded against the Deft Eichard Bentley to
restrain the said Deft, his servants, agents, and workmen, from pub-
lishing, carrying on, or conducting the ' Temple Bar Magazine,' in the
Pit's bill mentioned, until the hearing of this cause or further order.
But this ordet is to be without prejudice to the publication of the said
magazine until the hearing of this cause, so as that the name of the
Deft Eichard Bentley do not appear either on the title-page or other-
wise of the said publication, or in any of the advertisements of the
sai^ publication. And this order is to be without prejudice to the
right, if any, of the Pits to damages or profits in respect of any publi-
cation of the said work. Ainsworth v. Bentley (V.-C. W.), 14 W. E.
630.
Agreement — Daily Newspaper — Name or Style of — Injunction.
Let an injunction be awarded against the Deft to restrain him and
his agents from printing, publishing, or selling any newspaper or
other periodical under the name of The Daily London Journal, or
under any other name or style, of which the words London Journal
should form part, and from doing or committing any act or default
that might tend to lessen or diminish the sale or circulation of the
Pit's periodical called The London Journal. Ingram v. Stiff (V.-C. W.),
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282 INJUNCTIONS.
June 3, 1859 ; affirmed on appeal, but undertaking added as to
damages : S. C. 6 Jur. (N.S.) 947.
Agreement— Buildings — Commissioners of Woods — Injunction.
Let an injunction be awarded to restrain the Defts the Commis-
sioners of Woods and Forests, their agents and workmen, from con-
tinuing the projected buildings, or commencing any other buildings
whatever, on the garden or plot of ground described in the pleadings
of this cause, or any part thereof; and also from permitting such part
of the said buildings as have been already erected on the said garden
or plot of ground from remaining thereon until the Defts shall fully
answer the Pit's bill or further order. Bankin v. Huskisson, 4 Sim. 13.
Agreement — Bailway Company — Book Stalls — Injunction.
Let an injunction be awarded against the Defts the Eastern Coun-
ties Eailway Company to restrain them, their directors, servants, and
agents, from evicting the Pits from the book stall at the Bishopsgate
Street Station, or any other book stall existing at the date of the
agreement at any station comprised in the agreement. Let an injunc-
tion be awarded against the said Defts to restrain them their direc-
tors, servants, and agents from removing any advertisement, &o.,
affixed, exhibited, or published pursuant to the provisions of the
agreement. Holmes v. Eastern Counties By. Co., 3 K. & J. 676.
Covenant — Assignment or Underlease — Injunction.
Let an injunction be awarded against the Defts Taylor and Cannan
to restrain them, their solicitor and agents, until the hearing of this
cause or further order, from selling, assigning, or underletting, or
otherwise disposing of or parting with the possession of the messuage,
farm lands, hereditaments, and premises demised by the indenture of
lease of the 26th April, 1866, in the Pit's bill mentioned, or any' of
them, or any part thereof respectively, without such consent as in the
said indenture mentioned first bad and obtained. Dyke v. Taylor,
2 Giff. 666.
Covenant — Business not to he carried on — Injunction.
Let a perpetual injunction be awarded against the Deft T. H. B. to
restrain him, his partners and agents, from either directly or indirectly
setting up, embarking in, or carrying on the business or trade of a
wine or spirit merchant at the town of Carnarvon, or at any other
town or place within the three counties of Carnarvon, Anglesey, and
Merioneth. Turner v. Emns, 2 De G. M. & G. 740.
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INJUNCTIONS. 283
Similar Order — Trade Business.
Let an injunction be awarded against the Deft to restrain him, &c.,
until, &c., from resuming or carrying on the business of a stuff mer-
chant at or in the immediate neighbourhood of Bradford, either alone
or in partnership with any other person or persons whatsoever, under
the style or firm of J. D. & Co., or in any other manner holding out
that he is carrying on the business of a stuff merchant in continua-
tion of or in succession to the business carried on by the late firm of
J. D. & Co. Churton v. Dmglas, 5 Jur. (N.S.) 887.
Similar Order — Trade Secret.
Let a perpetual injunction be awarded against the Deft to restrain
him, &o., from carrying on any manufactory for the production of
Crockett's Leather Cloth in the bill mentioned, and from being engaged
in any company for the sale of the said cloth, or any cloth or any pro-
duction similar thereto, and from in any manner holding himself out
as the manufacturer of such Crockett's Leather Cloth or any production
similar thereto. The Leather Cloth Co. v. Lorsont, L. E. 9 Eq. 345.
Agreement — Partnership — Solicitor's Business — Boohs and Documents,
Let an injunction be awarded against the Deft to restrain him, &c.,
until the hearing, &c., from detaining and keeping possession of the
books, &c., removed by him or by his order from the chambers occu-
pied by the Pits (and for retaining which no written authority has
been produced by the Deft), or any or either of them (except the five
boxes not claimed by the Pits), and from permitting the same, or any
or either of them, except the five boxes, to remain away from the office
of the Pits, and from parting with the books, deeds, documents, and
papers removed by the said Deft or by his order from the chambers
occupied by the Pits, or any or either, &c,, except the five boxes not
claimed by the Pits, to any person or persons other than the Pits, and
from destroying, mutilating, or obliterating the said books, deeds,
documents, and papers, or any or either of them, except as aforesaid,
or any part or parts thereof respectively, or any entry or entries
therein, and from making any alteration, interlineation, or erasure in
the same, or any or either of them. WhittaJcer v. Howe, 3 Beav. 388.
Agreement — Partnership — Trade Business — Bills of Exchange, do. — Boohs
and Papers.
Let an injunction be awarded against the Deft T. G. to restrain
him, &c., until, &c., from drawing any cheques or cheque on the
bankers of the co-partnership in the bill mentioned in the name of
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284 INJUNCTIONS.
C. G. & Sons, and from drawing, making, accepting, indorsing, or
negotiating any bill of exchange, promissory note, or other security
■wliatever in the name of the co-partnership firm 0. G. & Sons, and
from receiving any of the debts or other moneys due to the said part-
nership, or any cheque, note, bill, or security belonging thereto ; and
from hindering or preventing the Pits, or either of them, from having
access to the books of the said partnership and liberty to inspect or
transcribe the same, or any of them, when they, or either of them,
shall think proper ; and from placing and depositing or keeping the
said partnership books, or any of them, or permitting them, or any of
them, to be placed, deposited, or kept at any other place than the
place of business of the said partnership without the consent of the
Pits. Greatrex v. Oreatrex, 11 Jur. 1052.
Breach of Ageeement oe Covenant.
Unless the whole agreement can be specifically enforced, the Court will, as a
general rule, decline to interfere by injunction : Stacker v. Wedderhurn, 3 K. (te J.
393 ; Gervais v. Edwards, 2 D. & War. 80 ; South Wales By. Co. v. Wythes, 5
De G. M. & G. 880.
The Court will not interfere partially, except in cases in which the parts of the
agreement which cannot be specifically enforced are independent of those which
may be specifically enforced : Kerr, 492 ; Oroome v. Lediard, 2 M. & K. 251 ;
Qihson v. Goldsmid, 5 Do G. M. & G. 757 ; Kernot v. Potter, 3 De G. F. & J.
447.
The interference of the Court by way of interlocutory injunction against breach
of covenant or agreement being in aid of the legal right, the party applying lor
an injunction must shew a good p^imd facie legal title : Capes v. Button, 2 Kuss.
357 ; Sainter v. Ferguson, 1 M. & G. 289, cited in Kerr, 493.
If the covenant or agreemeot is of such a character that the Court cannot
enforce its specific performance, or if an adequate remedy can be given at law, the
Court will not interfere by injunction : Furness By. Go. v. Smith, 1 De G. & S.
299.
The party seeking the injunction must shew that he has carried out, as far as
possible, his own part of the agreement : Stacker v. Wedderhurn, 3 K. & J. 4u5.
But where the remedy at law would bo inadequate, the Court has gi'anted tlie
relief, although not entirely satisfied with the conduct of the pit : Holmes v.
Eastern Counties By. Co., 3 K. & J. 675 ; Order, p. Z82.
In cases where a covenant is affirmative, the remedy in equity is by way of
specific performance. If it is a negative one, the remedy is by way of injunction :
Kerr, 503, 521.
The Court will not enforce by injunction a covenant which is vague, indefinite,
or uncertain in its terms : Eimherley v. Jennings, 6 Sim. 340 ; Mann v. Stephens,
15 Sim. 379 ; or which is harsh and oppressive : Eimherley v. Jennings, supra ;
Talbot V. Ford, 13 Sim. 173.
Where an agreement contains both affirmative and negative stipulations form-
ing but one contract, the Court will interfere by injunction to prevent the
violation of the negative stipulation, although not able to enforce the specific
performance of the enliio contract: Lumley v. Wagntr, 1 Do G. M, & G. 604,
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INJUNCTIONS. 285
per Lord St. Leonards ; Order, p. 281. See also Montague v. Mochton, L. E.16 Eq.
189.
Where the importation of a negative quality into an afflrmative agreement is not
against the meaning of the agreement, a Court of Equity will import the negative
quality, and restrain an act inconsistent with the agreement: Kerr, 521 ; Wiib-
ster V. Dillon, 3 Jur. (N.S.) 432 ; Tipping v. Echersley, 2 K. & J. 270.
In exercising the jurisdiction by way of mandatory injunction against acts in
violation of contract, covenant, or agreement, the Court looks to the express
stipulation of the agreement, and is not, as in cases of trespass or nuisance,
influenced hy considerations as to the nature or extent of the damage, or the
comparative convenience or inconvenience of granting an injunction : Kerr, 533 ;
Lane v. Newdigate, 10 Ves. 192 ; Newman v. Brandling, 3 Sw. 99 ; Rankin v.
BusMsson, 4 Sim. 13 ; Whittaker v. Howe, 3 Beav. 383 ; Order, p. 283.
For cases where injunctions have been granted under covenants in restraint of
trade : see Avery v. Langford, Kay, 663 ; Turner v. Evans, 2 De G. M. & G.
740 ; Order, p. 282 ; Whittaker v. Howe, 3 Beav. 383 ; Rolfe v. Rolfe, 15 Sim. 88 ;
Williams v. Williams, 2 Sw. 253; Churton v. Douglas, 5 Jur. (N.S.) 887;
Order, p. ,283 ; Leather Glott, Go. v. Lorsont, L. E. 9 Eq. 345 ; Order p. 283.
A restraint on trade is not good unless it is reasonable : Mitchell v. Reynolds,
1 P. Wms. 181.
In respect of time the restriction may be unlimited. But in respect of space
the restraint must be confined within reasonable limits : Kerr, 509, 510. and oases
there cited.
And the reasonableness or unreasonableness of the restriction in respect of
space depends in great measure on the nature of the business, and the mode in
which it is carried on : Ibid,
A covenant not to use a house as a " public-house, for sale of beer, wine,
malt liquor, or spirits,'' is not broken by taking out an ordinary excise licence
for the sale of beer not to be drunk on the premises: Fease v. Coats, L. K.
2 Eq. 688.
A covenant not to use a house as " a beerhouse " is not broken by the sale,
under a licence, of beer by reta,il to be consumed off the premises : Ldndon and
North Western Ry. v. Qarnett, L. R. 9 Eq. 26.
An agreement in restraint of trade is divisible. Where an agreement of the
sort contains a stipulation which is capable of being construed divisibly, and one
part is void as unreasonable and the other is not, the latter will be upheld, and
the contract will not be held void altogetlier : Kerr, 513 ; Mallam v. May, 11
M. & W. 664 ; Price v. Green, 13 M. & W. 696 ; 16 M. & W. 346.
A vendor who has taken from each of several purchasers of plots of land,
formerly the same estate, a covenant to build only in a specified manner, and has
permitted breaches of the covenant to be committed by some of the purchasers,
cannot obtain an injunction compelling the observance of the covenant by
another purchaser : Peek v. Matthews, L. E. 3 Eq. 515.
The Court wiU restrain by injunction partners of a firm doing acts contrary to
the partnership articles or agreement, or from interfering in the proper discharge
of the duties of a co-partner: Fairthome v. Weslon, 3 Hare, 387; Morris v.
Golman, 18 Ves. 437; Gharlton v. Poulter, 19 Ves. 147, n. ; Richardson v.
Hastings, 7 Beav. 301 ; Miles v. Thomas, 9 Sim. 606 ; England v. Curling,
8 Beav. 129 ; Hail v. Hall, 12 Beav. 414 ; Shrewsbury and Chester Ry. Co. v.
Shrewsbury and Birmingham Ry. Co., 1 Sim. (N.S.) 423 ; Qlassmgton v.
Thwaites, 1 Sim. & Stu. 124.
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286 INJUNCTIONS.
And in suits for dissolution of a partnership, partners have been restrained
from interfering with the partnership business, from parting with the books of a
partnership, and from drawing cheques and negotiating the bills of the partner-
ship : Smith v. Jeyes, 4 Beav. 503 ; Whittalcer v. Howe, 3 Beav. 388 ; Order,
p. 283 ; Oreatrex v. Oreatrex, 11 Jur. 1052 ; Order, p. 283.
COPYRIGHT.
Literary Copteight.
Directories.
Let a perpetual injunction be awarded against the Deft to restrain
Mm, his workmen, servants, and agents, from publishing, printing,
selling, delivering, or otherwise disposing of, or causing or know-
ingly permitting to be published, printed, sold, delivered, or otherwise
disposed of, any copies or copy of his book, called ' The Imperial
Directory of London, 1866,' in the Pit's bill mentioned, containing
the divisions headed Streets, Official, Parliamentary, Court, Civic,
Parochial and Clerical, Customs, Banking and Insurance, Legal,
Postal, Public Institutions, Conveyance, and Miscellaneous, or any or
either of them, or any part thereof respectively. Deft to pay Pit's
costs of suit, to be taxed, &c. Kelly v. Morris (V.-C. W.). L. E. 1 Eq.
697.
Directory — Paid-for Insertions — Advertisements.
Let a perpetual injunction be awarded against the Defts to restrain
them, their respective workmen, servants, and agents, from printing,
publishing, selling, delivering, or otherwise disposing of the book
called, ' The Merchants' and Manufacturers' Pocket Directory of
London, 1868,' already printed and published by the Defts, as in the
Pit's bill mentioned, or any copy or copies of any pirated portion
thereof, and from copying or pirating any portion of the Pit's book
called ' The Business Directory of London,' in the bill mentioned, or
any part thereof, and from selling, or otherwise disposing of any
book containing such pirated matter as aforesaid. But this injunction
is not to extend to any advertisements which appeared at the end of
the Left's said book, or on any separate pages thereof, as distinct
from the list of names in the body of the said book. Defts to pay
costs of suit, to be taxed, &o. Morris v. Ashhee, L. R. 7 Eq. 34.
Topographical Dictionary.
Let the Deft, his agents, servants, and workmen be restrained, &c.,
from further printing, publishing, selling, or otherwise disposing of
any copy or copies of a book called ' A New and Comprehensive
Gazetteer,' containing any articles or article, passages or passage copied,
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INJUNCTIONS. 287
taken, or colourably altered from a book called ' Tlie Topographical
Dictionary of England,' published by the Pits. Lewis v. Fullarton,
2 Beav. 6, 14.
Portion of Worh protected.
The Pit by his counsel undertaking as to damages, &c., Let the
Defts, their servants and agents, be restrained until the hearing of
this cause or further order from printing, publishing, selling, deliver-
ing, or otherwise disposing of, any of the copies of the book or work
called ' The Guardian Angel ' in the Pit's bill mentioned, printed or
caused to be printed by the Defts, as in the bill mentioned, or any
other copy or copies of the said book or work containing the six last
chapters of the said book or work printed and published by the Pit
as in the bill mentioned, or any parts of such six last chapters. Low
V. Ward, L. E. 6 Eq. 415.
Hand-Boole — Injunction.
Let the Defts S. & Co. and T. & Co., their servants, workmen, and
agents, be restrained until, &c., from printing, publishing, selling, or
otherwise disposing of ' The Livalids' and Visitors' Hand-Book ' in
the Pit's bill mentioned, or any copy thereof, or any part of the
work ' Spas of England ' published by the Pit, or any work written
or composed by the Deft Dr. Q. of a similar nature or description to
the work so published by the Pit, or to any part thereof.
Let the Deft Dr. G., his servants, workmen, and agents, be re-
strained until, &c., from assigning or otherwise disposing of to the
Defts, or any of them, or any other person, &c., the copyright of
the same work, or of any part thereof, and from being concerned in
'any work of a similar description to, or which might interfere with
the value of the copyright of, the work so published by the Pit. Col-
burn V. Simms, 2 Hare, 543.
niuslrated Booh — Engravings — Injunction.
Let the Defts, their servants, agents, and workmen, be restrained
until, &o., from printing, or publishing, or selling, or exposing for
sale or hire, or otherwise disposing of any further or other copies or
copy of a book called ' The Comical History and Tragical End of
Eeynard the Eox,' or any other book, work, publication, or thing
containing any passage, article, print, woodcut, engraving, matter,
or thing contained in the book of the Pits intituled, &c. Bogue v.
Houlston, 5 De G. & Sm. 267; 16 Jur. 372.
Essay — Selections from Poem — Injunction.
Let an injunction be awarded against the Defts to restrain them,
their servants and agents, until. &c., from selling or exposing for sale
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288 INJUNCTIONS.
any further copies of the work or volume called ' Book of the Poets —
The Modern Poets of the Kineteenth Century,' in the Pit's bill men-
tioned, or such part or parts thereof as consists or consist of the
Pit's original compositions comprised between pages 233 and 261, both
inclusive, of the said volume, and from printing or publishing the
same, or any other of the Pit's compositions, in any other volume or
work, or otherwise, without the Pit's leave first obtained thereto.
Pit to bring such action as he may be advised. — Costs of motion
reserved. Campbell v. Scott, 11 Sim. 31 ; see also Tinsley v. Lacy, 1 H.
& M. 747 ; 11 W. E. 876 ; Order, p. 292.
Essay — Injunction — Damages.
Let a perpetual injunction be awarded against the Deft T. N. to
restrain the said Deft, his servants and agents, from selling or
disposing of, or causing to be published, sold, or disposed of, any
copies or copy of the Deft's book intituled, 'The Pedigree of the
English People,' in its present state, or of any book containing the
7th section of chap. 1 of part 3, or sect. 1 of chap. 5, part 3, of the
Deft's said book. Let the Deft deliver up to the Pit the above
mentioned portions of the said book to be cancelled.
Let the Deft T. N. within twenty-one days after service of this
order pay to the Pit L. P. the sum of £70, as the ascertained
amount of damages sustained by the Pit by sale of the number of
copies of the Deft's book. Deft to pay costs of suit. Pike v. Nicholas
(V.-C. J.), April 24, 1869 ; reversed L. E. 5 Ch. 251.
Map — Injunction — Inquiry as to Damages.
Let a perpetual injunction be awarded against the Defts to restrain
them, their servants, agents, and workmen, from printing, publishing,
selling, or otherwise disposing of, and from offering or exposing for
sale the ' Bird's-eye View or Plan of Paris and its Fortifications,' in
the Pit's bill mentioned to have been published by the Defts.
Let the Defts deliver up to the Pits all unsold copies of the said
view or plan now in their possession or power. Let an inquiry be
made what sum of money is proper to be awarded to be paid by the
Defts to the Pits in respect of any damage which has been sustained
by the Pits by reason or on account of the publication or sale of the
said view or plan by the Defts. Defts to pay to Pits the sum certified
within one month after date of chief clerk's certificate. Defts to pay
costs of suit. — Liberty to apply. Stannard v. Harrison (V.-G. B.),
Nov. 19, 1870.
Illustrated Catalogue of Designs — Injunction.
Let a perpetual injunction be awarded to restrain the Deft, his
servants, agents, and printers, from publishing, printing, selling,
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INJUNCTIONS. 289
delivering or otterwise disposing of the sheet of monumental designs
in the bill mentioned, or any other sheet in the compilation of which
the Pit's book of monumental designs has been used, and from copying
or pirating any parts of the said book.
Let the Deft on or before the 2nd of April, 1875, deliver to the Pit
upon oath (if required) any such sheets in the power or custody of the
Deft for the purpose of being destroyed. — Deft to pay costs of suit.
Grace v. Newman, L. E. 19 Eq. 623.
Literary Copyright — Duration of — Meaning.
" The copyright in every book which shall after the passing of this Act be pub-
lished in the lifetime of its author shall endure for the natural life of such author,
and for the further term of seven years, commencing at the time of his death, and
shall be the property of such author and his assigns : Provided always, that if the
said term of seven years shall expire before the end of forty-two years from the
first publication of such book, the copyright shall in that case endure for such
period of forty-two years ; and that the copyright in every book which shall be
published after the death of its author shall endure for the term of forty-two
years from the first publication thereof, and shall be the property of the pro-
prietor of the author's manuscript from which such book shall be first published,
and his assigns " : 5 & 6 Vict. c. 45, s. 3.
The term " copyright " shall mean the sole and exclusive liberty of printing or
otherwise multiplying copies of any subject to which the said word is in the
Act applied : 5 & 6 Vict. c. 45, s. 2.
The term "book" means and includes every volume, part or division of a
volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan
separately published : 5 & 6 Vict. c. 45, s. 2.
The word "assigns" means and includes every person in whom the interest of
an author in copyright shall be vested, whether derived from such author
before or after the publication of any book, and whether acquired by sale,
gift, bequest, or by operation of law or otherwise : 5 & 6 Vict. c. 45, s. 2.
To come within the protection of the copyright statutes, a work need not
consist of new or original matter. Compilations of old materials, or of materials
which are common to all men, may be the subject of copyright : Kerr, 450.
Copyright is personal property : 5 & 6 Vict. c. 45, s. 25.
And an agreement by publishers with an author to print, reprint, and publish a
work by him at their own risk, on the terms that the profits should be equally
divided, and the author make the necessary alterations, &c., in another edition, is
an agreement of a personal nature, not assignable without the author's consent :
Stevens v. Benning, 6 De Gr. M. & G. 223 ; see also Eeade v. Bentley, 3 K. & J.
271 ; 4 K. & J. 656.
Subjects of Literary Copyright.
There may be copyright in encyclopjedias, reviews, magazines, and other pe-
riodicals : 5 & 6 Vict. c. 45, s. 18 ; in histories, Duke of Queensbury v. Shebbeare,
2 Eden, 329 ; in road or guide books, Gary v. Longman, 1 East, 3 ; Gary v.
Faden, 5 Ves. 23; Longmmi: v. Winchester, 16 Ves. 269, 271; in directories,
u
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Kelly V. Morris, L, E. 1 Bq. 697 ; Order, p. 286 ; Edly v. Hooper, 1 T. & C. (Ch.)
197 ; 4 Jur. 21 ; Lewis v. Fullerton, 2 Beav. 6 ; Order, p. 286 ; in lectures, 5 & 6
Will. 4, 0. 65 ; in books of statistics, Scott v. Stanford, 16 L. T. (N.S.) 51 ; Cornish
V. Upton, 4 L. T. (N.S.) 862; in manuscript treatises and letters having the
character of literary compositions, Webb v. Eose, 2 Bro. P. C. 138 ; Pope v. Ourl,
2 Atk. 341 ; Thompson v. Stanhope, Amb. 737 ; Perceval v. Phipps, 2 V. & B. 19 ;
Gee V. Pritchcurd, 2 Sw. 418 ; see also as to letters, Bopkinson v. Lord Bwghley,
L. E. 2 Ch. 447 ; in descriptive catalogues of curiosities or works of art or of designs,
Hogg V. Kirby, 8 Ves. 215, 221; Prince Albert v. Strange, 2 De G. & Sm. 652 ;
1 Mac. & G. 25 ; Order, p. 294 ; Hotten v. Arthiir, 1 H. & M. 603 ; 32 L. J. (Ch.)
771 ; Orace v. Newman, L. E. 19 Eq. 627 ; but not in mere catalogues of articles
for sale, Cobbett v. Woodwa/rd, L. E. 14 Bq. 407 ; in court calendars, Longman
V. Windtester, 16 Ves. 269 ; in books of elementary lessons in science, Jarrold v.
Houlstone, 3 E. & J. 708 ; in additions, corrections, or original notes to an old
work, Tonson v. Walker, 3 Sw. 672 ; Gary v. Longman, 1 Bast, 358 ; Mason v.
Murray, Ibid. ; Gary v. Faden, 5 Ves. 23, 25 ; in abridgments, Bell v. Walker,
1 Bro. C. 0. 451 ; Giles v. Wilcoa, 2 Atk. 143 ; in law reports. Sweet v. Shaw,
1 Jur.'917 ; Sweet y. Maugham,, 11 Sim. 51 ; see also Saunders v. Smith, 3 My. & C.
711, 729 ; in head-notes or the side or marginal notes of law reports. Sweet v.
Penning, 1 Jur. (N.S.) 543 : in translations, Wyatt v. Barnard, 3 V. & B. 77.
And the Crown has, by virtue of its prerogative, the exclusive right to the
publication of Acts of Parliament, proclamations, Orders of Council, liturgies, books
of divine service, the translation of the Bible, &o. : Kerr, 461, citing Basket v.
University of Cambridge, 1 W. Bl. 105 ; Basket v. Cunningham, 2 Eden, 137 ;
Mamners v. Bligh, 3 Bli. (N.S.) 402.
There is no copyright in works of libellous, immoral, or irreligious character :
Wcdcot V. Walker, 7 Ves. 1 ; Gee v. Pritchard, 2 Swan. 413 ; Southey v. Sher-
wood, 2 Mer. 435 ; Murray v. Benbow, 1 Jao. 474 ; Lawrence v. Smith, 1 Jac.
471.
Eegisteation — ^Assignment.
The proprietor of copyright in any book is to register the title of the book, and
the time of the first publication, &c. : 5 & 6 Vict. c. 45, s. 13.
A newspaper requires no registration under the 5 & 6 Vict. c. 45. But the
proprietor can sue in respect of a piracy : Cox v. Land amd Water Journal, Law
Eep. 9 Bq. 324.
The assignment of a copyright must be in writing : 5 & 6 Vict. c. 45, s. 15 ;
but does not require attestation : Cumberland v. Gopeland, 9 Jur. (N.S.) ; 253 ;
10 W. E. 581.
A licence to publish is not an assignment of a copyright : Reads v. Benthy,
4K. &J. 656.
Limitation of Actions, &c.
All actions, suits, &c., for any offence committed against the Copyright
Act must be commenced within twelve calendar months next after the ofiience
committed : 5 & 6 Vict. c. 45, s. 26.
But this section does not apply to prevent a suit for an injunction to restrain a
piracy of copyright by sale of a book published more than twelve months before
bill filed : Hogg v. -Scott, L, E. 18 Eq. 444.
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INJUNCTIONS. 291
International Copyeisht in Books.
Her Majesty may, by Order in Council, direct that as respects all books to be
defined in suoli order, which shall after a future time, to be specified in such
order, be first published in any foreign country, the authors shall have copyright
therein during such period as shall be defined in such order : 7 & 8 Vict. c. 12,
s. 2.
If the Order in Council applies to books, the copyright law asi to books first
published in this country shall apply to the books to which the Order relates,,
with certain exceptions: 7 & 8 Yict. c. 12, s. 3.
No author of any book is to be entitled to the benefit of the Act or the Order in
Council unless such book is registered with the Company of Stationers : 7 & 8
Vict. c. 12, s. 6.
Copies of books wherein copyright is subsisting printed in foreign countries
other than those wherein the book was first published, are prohibited to be
imported : 7 & 8 Vict. c. 12, s. 10.
Authors of works first published in foreign countries are not entitled to copy-
right except under the Act : 7 & 8 Vict. c. 12, s. 19.
Her Majesty may, by Order in Council, direct that the authors of books pub-
lished in foreign countries may, for a limited time, prevent unauthorized trans-
lations, and the law of copyright is to extend to prevent such translations: 15
& 16 Vict. c. 12, ss. 2, 3.
For cases of literary copyright under these Acts, see Ollendorf v. Blach, 4 De G.
& Sm. 209 ; 14 Jur. 1080; Cassdl v. Stif, 2 K. & J. 279; Jefferys v. Boosey, 4
H. L. C. 817; 1 Jur. (N.S.) 615.
AU articles of political discussion published in any newspaper or periodical
in a foreign country may be re-published or translated unless the author has
notified his intention to reserve the right : 15 & 16 Vict. c. 12, s. 7.
No author is entitled to the benefit of the 15 & 16 Vict. c. 12, or of any Order
in Council issued in pursuance thereof, in respect of the translation of any book,
unless the requisitions of the Act as to registration of the original work and of
the translation are complied with : 15 & 16 Vict. c. 12, s. 8.
The translation sanctioned by the author, or a part thereof, must be published
either in the country mentioned in the Order in Council by virtue of which it is to
be protected, or in the British dominions, not later than one year after the regis-
tration and deposit in the United Kingdom of the original work, and the whole
of such translation must be published within three years of such registration and
deposit : 15 & 16 Vict. c. 12, s. 8, sub-s. 3 ; see Wood v. Chart, L. R. 10 Eq. 193 ;
post, p, 293.
All pirated copies of any work of literature or art are prohibited to be im-
ported : 15 & 16 Vict. c. 12, s. 9.
The provisions of the Act are to apply to translations of books published in
France: 15 & 16 Vict. o. 12, s. 11.
Dramatic and Musical Copyeight.
Opera Magatdrte — Pianoforte Music.
Let an injunction be awarded against the Deft to restrain him,, his
servants, agents, and workmen until, &c., from selling or otherwise
disposing of the portion of No. Ill of the 'Pianista, or Italian Opera
u 2
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292 INJUNCTIONS.
Promenade Concert Magazine of Pianoforte and Vocal Music,' contain-
ing three pianoforte solos from Mendelssohn's original composition of
music to Shakespeare's ' Midsummer Night's Dream ' called respec-
tively the ' Scherzo,' the ' Nottumo,' and the ' Wedding March,' and
also from reprinting or multiplying any further copies of the said
No. Ill of the 'Pianista' which shall contain the said pieces or any
of them, and also from printing, publishing, or selling any portion of
the said work or composition of music to Shakespeare's ' Midsummer
Night's Dream ' composed and arranged by Felix Mendelssohn Bar-
tholdy, except the overture thereof. Buxton v. James, 5 De G. & Sm.
80.
Dramatised Novel.
Let a perpetual injunction be awarded against the Deft to restrain
him and his agents from further printing, publishing, selling, or
otherwise disposing of any copies of the drama called ' Lady Audley's
Secret ' in the Pit's bill mentioned, without first omitting therefrom
all passages identical with, or copied or taken or only colourably
differing from the book called 'Lady Audley's Secret' in the Pit's
bill mentioned, published by the Pit's firm; and also from further
printing, publishing, selling, or otherwise disposing of any copies of
the drama called ' Aurora Floyd ' in the Pit's bill mentioned, without
first omitting therefrom all passages identical with, or copied or taken
or only colourably differing from the book called ' Aurora Floyd,' pub-
lished by the Pit's firm. Deft to pay Pit's costs of suit. — Liberty to
apply. Tinsley v. Laey, 32 L. J. (Ch.) 535 ; 11 W. E. 876 ; 1 H. & M.
747.
The words " dramatic piece '' mean and include every tragedy, comedy play
opera, farce, or other scenic, musiical, or dramatic entertainment • 5 & 6 Vict.
0. 45, s. 2.
The provisiona of the 3 Will. 4, apply to musical compositions, and the sole
liberty of representing or performing, or causing or permitting to be represented or
performed, any dramatic piece or musical composition, is to endure and be the
property of the author thereof and his assigns for the term provided for the dura-
■ tion of copyright in books ; aud the provisions enacted in respect of the property
in such copyright, and of registering the same, are to apply to the liberty of
representing or performing any dramatic piece or musical composition, except
that the first public representation or performance of any dramatic piece or
musical composition is to be deemed equivalent to the first publication of any
book: 5 & 6 Vict..c. 45, s. 27.
A Bong which describes feelings in words of passion is dramatic in its nature •
JSussell V. Smith, 12 Q. B. 217.
And a pantomime is within the statutes : lee v. Simpson, 3 C. B 871 • cited
in Kerr, 463. " '
To publish in the form of quadrilles and waltzes the airs of an opera of which
there exists an exclusive copyright is an act of piracy : D'Almaine v. Boosey
1 Y. & C. 288 ; see also Ohapell v. Shea/rd, 1 Jur. (N.S.) 996. '
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INJUNCTIONS. 293
The English assignee of the copyright of a foreign musical composer is within
the protection of the statutes relating to copyright : D'Almaine v. Boosey, 1 Y. &
0. 288.
And the man who adapts words of his own to an old air, and adds thereto a
prelude and accompaniment also his own, acquires a copyright in the combina-
tion: Kerr, 463 ; Lever v. Davidson, 1 C. B. (N.S.) 182.
Novels may be dramatized and acted upon the stage : Eeade v. Oonqitest,
9 0. B. (N.S) 755 ; 9 W. E. 434; 7 Jur. (N.S.) 265.
But the drama may not be printed : Tinstey v. Lacy, 82 L. J. (Ch.) 535 ; 11
W. E. 876 ; 1 H. & M. 747 ; Order, p. 292.
The pianoforte score of an opera may be the subject of copyright: Wood v.
Boosey, 2 Q. B. 340 ; 15 W. E. 309 ; 15 L. T. (N.S.) 530 ; 3 Q. B. 223.
As regards registration, it is sufficient if the title, the name and place of abode
of the author or composer, the name and place of abode of the proprietor, and the
time and place of its first representation, be registered : 5 & 6 Vict. c. 45, s. 20.
In Wood V. Boosey, supra, it was held that the arranger of the pianoforte score
and not the composer of the opera, must register.
The assignment of the right to represent a dramatic piece or perform a musical
composition must be in writing, but need not be by deed : Kerr, 463 ; Shepherd
V. Conquest, 17 0. B. (N.S.) 427 ; Marsh v. Gonguest, 17 C. B. (N.S.) 418.
International Copyright in Dramatic Pieces.
Her Majesty may, by an Order in Council, direct that authors and composers
of dramatic pieces and musical compositions first publicly represented and per-
formed in foreign countries shall have copyright therein : 7 & 8 Vict. c. 12, s. 5.
Her Majesty may, by an Order in Council, direct that authors of dramatic
pieces first publicly represented in any foreign covmtry may, for a limited time,
not extending beyond the expiration of five years from the time at which the
authorized translation of such dramatic piece is first published or publicly repre-
sented, prevent the representation in British dominions of unauthorized transla-
tions : 15 & 16 Vict. c. 12, s. 4.
The Act is not to apply to fair imitations and adaptations to the English .stage
of any dramatic piece or musical composition published in any foreign country : 15
& 16 Vict. 0. 12, s. 6.
No author is to be entitled to the benefit of the Act in respect of the transla-
tion of any dramatic piece without complying with the requisitions thereby made
as to registration of the original work and its translation : 15 & 16 Vict. c. 12,
s. 8.
In the case of dramatic pieces the translation sanctioned by the author must be
published within three calendar months of the registration of the original work :
15 & 16 Vict. c. 12, s. 8, sub-s. 6.
A translation such as is required by the Act must be a translation of the whole
work, not merely what the author should sanction as a translation : Wood v.
Chart, L. B. 10 Eq. 193.
For cases of musical composition under these Acts, see BiKctmvY. James, 5 De G
&Sm. 80; 16 Jur. 15.
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294 INJUNCTIONS.
Prints, Engeavings, and Etchings.
Etchings,
Let the Deft W. S., his servants, agents, and workmen, be restrained
until, &o., from exhibiting the gallery or oollectiou of etchings in the
bill mentioned, or any of such etchings, or from making or permitting
to be made any engravings or copies of the same or any of them ; and
from publishing the same or any of them, or from parting with or
disposing of the same or any of them, and from selling or in any
manner publishing and from printing the descriptive catalogue in the
Pit's bill mentioned, or any work being or purporting to be a catalogue
of the etchings made by the Pit as aforesaid. Prince Alhert v. Strange,
2 De G. & Sm. 652, 656 ; 1 Mac. & G. 25 ; 13 Jur. 109.
Same Case-^Order on the Hearing.
Deolaee that the Pit is entitled to have delivered to him the im-
pressions (by the answer of the Deft J. admitted to be in his posses-
sion) of such of the several etchings in the pleadings mentioned as in
the catalogue and in the pleadings are stated to have been etched by
the Pit, that is to say [describing them by reference to the numbers in
the catalogue]. Let the Deft J., within four days after service of this
decree deliver up the above impressions above specified on oath, and
deposit them with the clerk of records and writs. Let the Deft S.
within the like period deliver to the clerk of records and writs at the
said office the twenty-three copies of the descriptive catalogue men-
tioned in the order dated, &c. [Similar direction against Deft Judge
as regards six other copies.] Let the clerk of records and writs
destroy the said copies of the catalogue, giving notice to the solicitors
of the several parties of the time and place, &c. Let the Defts, their
servants, agents, and workmen, be restrained, &c. [injunction in
terms of interim order above]. — Directions for payment of costs by
Deft J. — Liberty to apply. Prince Albert v. Strange, 2 De G. & Sm.
652, 717 ; 1 Mac. & G. 26 ; 13 Jur. 109.
Copyright in Prints, Unga/vings, Etchingg.
" Every person who shall invent and design, engrave, etch, or work in mezzo-
tinto or chiaro^scMro, or from his own works and inventions shall cause to be
designed and engraved, etched, or worked in mezzotinto or ckiaro-oscuro, any
historical or other print or prints, shall have the sole right and hberty of printing
and reprinting the same for the term of fourteen years (extended to twenty-eight
years by 7 Geo. 3, c. 38, s. 7), to commence from the day of the first publishing
thereof, which shall be truly engraved with the name of the proprietor on each
plate, and printed on every such print or prints " : 8 Geo. 2, c. 13.
" All and every person or persons who shall invent or design, engrave, etch, or
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INJUNCTIONS. 295
Work in mezzotinto or chiaro oscuro, or from his own work, design, or invention
shall cause or procure to he engraved, etched, or worked, any historical print or
prints, or any print or prints of any portrait, conversation, landscape, or archi-
tecture, map, chart, or plan, or any other print or prints whatsoever, shall have
the benefit of the 8 Geo. 2, c, 13 and of this Act " : 7 Geo. 3, c. 38, s. 1.
Her Majesty may by Order in Council direct that as regards prints and other
works of art, to be defined in such Order, which shall be first published in any
foreign country, the author or inventor may have copyright therein, and the
English Copyright Law is to apply : 7 & 8 Vict. c. 12, ss. 2, 3.
The benefit of the Copyright Act extends to lithographs : 15 & 16 Vict. c. 12,
s. 14.
Prints and engravings forming part of a book are protected by 5 & 6 Vict.
c. 45, and need not comply with the requisitions of the 8- Geo. 2, c. 13, and
7 Geo. 3, c 38.
By sect. 6 no inventor, designer, or engraver of any foreign print is to be en-
titled to the benefit of the Act or of the Order in Council unless the same shall have
been registered according to the mode prescribed in the Act.
The provision contained in the 8 Geo. 2, c. 13, as to the date and name of the
proprietor being engraved on the plate, must be strictly complied with : Thompson,
V. Symons, 5 T. B. 41 ; Mackmurdo v. Smith, 7 T. E. 518 ; Sarrison v. Sogg,
2 Ves. Jun. 323; Newton y. Oowie, 4 Bing. 324; S. 0. 12 J. B. Moore, 457;
Brooks V. OocJe, 3 Ad. & E. 138 ; Colnaghi v. W<wd, 12 L. J. (N.S.) (Q.B.) 1.
But where a book is published containing letterpress illustrated by wood
engravings, the provisions of the Copyright Act as to books having been com-
plied with, it was held that those provisions extended to the wood engravings
equally with the letter press : Bogue v. Eoulston, 5 De G. & Sm. 267 ; see Order,
p. 287.
A copy is piratical within the above-mentioned Acts if it comes so near the print
engraving, &c., as to give every person seeing it the idea created by the original ;
Kerr, 464 ; West v. Francis, 5 B. & Aid. 743.
The copying by photography of engravings patented by the Copyright Acts is a
copy within the meaning of the 17 Geo. 3, o. 57 : Qamlart v. Ball, 9 Jur. (N.S.)
1059 ; 11 W. E. 699.
And all processes for the indefinite multiplication of copies are within the Acts for
the protection of artists and engravers.
No copyright exists in any obscene, immoral, or libellous engraving : 5 Geo. 4,
c. 83, s. 4 ; 1 & 2 Vict. c. 38, s. 2 ; 20 & 21 Vict. c. 83.
For the summary proceedings which may be taken to recover penalties under the
Engraving Acts see 25 & 26 Vict. c. 68.
Copyright in Sculptwe, Gagts, and Models.
Every person or persons who shall make or cause to be made any new and
original sculpture, or model, or copy, or cast of the human figure or human figures,
or of any bust or busts, or of any part or parts of the human figure clothed in drapery
or otherwise, or of any animal or animals, or of any part or parts of any animal,
combined with the human figure or otherwise, or of any subject being matter of
invention in sculpture, or of any alto or basso-relievo representing any of the matters
or things hereinbefore mentioned, or any cast from nature of the human figure, or of
any part or parts of the human figure, or of any cast from nature of any animal, or
of any part or parts of any animal, or of any such subject containing or represent-
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296 INJUNCTIONS.
ing any of the matters and things hereinbefore mentioned, whether separate or
combined, shall have the sole right and property of all and in every such new
and original sculpture, model, copy, and cast, &o., for the term of fourteen years
from first putting forth or publishing the same ; provided in all and in every case
the proprietor or proprietors do cause his, her, or their name or names with the
date to be put on all |and every such new and original sculpture, model, copy,
or cast, and on every such cast from nature, before the same shall be put forth or
published : 54 Greo. 3, c. 56 ; see also 38 Geo. 3, o. 71.
The copyright in the subjects of the Act is to extend for an additional term of
fourteen years if the maker of the original sculpture, &c., be alive, except in cases
of sale, &c. : 54 Geo. 3, c. 56, s. 6. ,
Sculpture and models may be registered under the 13 & 14 Vict. c. 104, s. 6.
Assignments of the right of property of any new and original sculpture, or model,
or oast, or of any cast from nature of the proprietor, must be by deed attested by
two or more witnesses : 54 Geo. 3, c. 56, s. 4.
Copyright in Original Paintings, Drawings, and Photographs.
" The author, being a British subject or resident within the dominions of the
Crown, of every original painting, drawing, and photograph which shall be or shall
have been made, either in the British dominions or elsewhere, and which shall not
have been sold or disposed of before the commencement of this Act, and his assigns,
shall have the sole and exclusive right of copying, engraving, reproducing, and
multiplying such painting or drawing, and the design thereof, or such photograph
and the negative thereof, by any means and of any size, for the term of the
natural life of such author and seven years after his death : provided that when
any painting or drawing, or the negative of any photograph, shall for the first time
after the passing of this Act be sold or disposed of, or shall be made or executed for
or on behalf of any other person for a good or valuable consideration, the person so
selling or disposing of, or making or executing the same, shall not retain the copy-
right thereof unless it be expressly reserved to him by agreement in writing," &c. :
25 & 26 Vict. c. 68, s. 1.
All copyright under the Act is to be deemed personal property ; and assign-
ments and licences are to be in writing : 25 & 26 Vict. c. 68, s. 4.
And no proprietor of copyright is entitled to the benefit of the Act until after
registration : Ibid.
In any action in any of Her Majesty's Superior Courts of Record at Westminster
and in Dublin for the infringement of any such copyright the Court may make an
order for an injunction, inspection, or account : 25 & 26 Vict. c. 68, s. 9.
Copyright in Designs.
Woven Fabrics — Injunction — Drawings and Articles to be delivered up.
Let the injunction awarded on the — day of — against the Defts,
restraining them and each of them, their workmen, servants, and
agents, from selling or disposing of any of the articles of manufacture
to which the Pits' design, in the Pits' bill mentioned, or a fraudulent
imitation thereof, had been applied, as in the said bill mentioned,
and from applying the Fits' said design, or any fraudulent imitation
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INJUNCTIONS. 397
thereof; to any woven fabrics or articles of manufacture, be continued
until over the — day of — . Let the Defts forthwith deliver up to
the Pits, for the purpose of being destroyed, the drawing or draw-
ings, point paper, and the several cards used in applying the design
in the Pits' bill mentioned ; and also the articles manufactured by
the Defts to which the said Pits' design had been applied : the same
to be verified by affidavit. Direction for taxation of costs and pay-
ment by Defts. On payment of costs proceedings to be stayed, except
to enforce injunction. MacBae v. Holdaworth, 2 De G. & Sm. 496.
Mantilla Shawls — Injwnction.
Let the Defts, their agents, servants, and workmen, be restrained
until, (fee, from manufacturing or making, or causing or procuring to
be manufactured or made, or selling, or exposing, or offering for sale
or exporting or otherwise disposing of any of the shawls known in
the trade as the mantilla shawl, in the Pit's bill mentioned, having
applied thereto the Pit's design registered the 12th of February, 1857,
and numbered in the Designs Office, London, No. — , or a design in
fraudulent imitation thereof, or any shawls or shawl of the Pit's said
registered design, or of any design being an imitation thereof, or only
colourably differing therefrom, and from in any way pirating or
infringing the Pit's said design during the continuance of the Pit's
copyright in the said design, or of any extension thereof. Norton v.
Nichols, cited 4 K. & J. 476.
CopYEiGHT IN Designs.
With regard to any new and original design (except for sculpture and other
things within the provisions of the several Acts mentioned in the schedule to this
Act annexed), whether such design be applicable to the ornamenting of any
article of manufacture, or of any substance, artificial or natural, or partly artificial
and partly natural, and that whether such design be so applicable for the pattern,
or for the shape or configuration, or for the ornament thereof, or for any two or
more of such purposes, and by whatever means such design may be so applicable,
whether by printing, or by painting, or by embroidery, or by weaving, or by
sewing, or by modelling, or by cutting, or by embossing, or by engraving, or by
staining, or by any other means whatsoever, manual, mechanical, or chemical,
separate or combined, the proprietor of every such design not previously pub-
lished either within the United Kingdom of Great Britain and Ireland, or else-
where, shall have the sole right to apply the same to any articles of manufacture,
or to any such substances as aforesaid, for the respective terms in the said Act
mentioned : 5 & 6 Vict. c. 100.
Copyright in designs for ornament is regulated by the Act above cited, and by
6 & 7 Vict. c. 65, 13 & 14 Vict. c. 104, 21 & 22 Vict. c. 70, and 24 & 25 Vict,
c. 73. See also Harrison v. Taylor, 4 H. & N. 415 ; Beg. v. Firmin, cited
3 H. & N. 304 ; Mulloney v. Stevens, 10 L. T. (N.S.) 190 ; Lazarus v. Charles,
L. E. 16 Eq. 117.
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298 INJUNCTIONS.
Copyright in designs for utility is regulated by 6 & 7 Vict. c. 65, and 13 & 14
Vict. 0. 104.
The word " design " does not mean an invention, but means something in the
nature of a drawing, diagram, or picture, applicable to the ornamentation of some
article of manufacture : Kerr, 467.
The design must be registered : 5 & 6 Vict. c. 100, s. 2.
The transfer of copyright in the design must be by writing, and must be regis-
tered : 5 & 6 Vict. c. 100, s. 3.
By the 6 & 7 Vict. o. 65, the benefit of the 5 & 6 Vict. c. 100, is extended to
certain designs not comprised in the latter Act.
By the 13 & 14 Vict. c. 105, ss. 1, 2, certain designs may be registered pro-
visionally for one year.
By the 21 & 22 Vict. c. 70, s. 3, the term of copyright in designs for ornament
is extended.
By 24 & 25 Vict. c. 73, the provisions of the previous Acts as to designs are
extended to designs done either in or out of the United Kingdom, and whether
the inventor be or be not a subject of Her Majesty.
For cases upon " designs " under the above Acts, see Margetson v. Wright, 2
De G. & Srh. 420; MacRae v. Eoldsworth, 2 De G. & Sm. 496 : Order, p. 297 ;
Norton v. Nichdlls, 4 K. & J. 475; Norton y. Nicholls, 5 Jur. (N.S.)1203;
Order, p. 297 ; MacSae v. Eoldsworth, 18 W. K. 489, 19 W. E. 36.
The power and duties of the Board of Trade under the Copyright of Designs
Acts are now transferred to the Commissioners of Patents. See Copyeight op
Designs Act, 1875, post, p. 747.
PATENTS.
Combination 6f Lead and Tin — Injunction after Trial by Jury — Inquiry as
to Damages.
Let a perpetual injunction be awarded to restrain the Defts, their
servants and agents and workmen, from making or manufacturing or
selling any material made or manufactured by them similar to, or only
colourably differing from, the material or combination of lead and tin
discovered and invented by the Pit, as in the bill mentioned, and
comprised and described in the letters patent granted to the Pit, as ia
the bill mentioned, and the Pit's specification of his invention.
Let an inquiry be made whether the Defts, or any of them, have in
their possession or power any and what articles manufactured in
violation of the Pit's patent. Let all articles which shall be certified
to have been so manufactured, and to be in the possession of the Defts,
or any of them, be destroyed in the presence of Archibald Samuel
Campbell, the Pit's manager, and Arthur Kinder, the Defts' manager,
and the respective solicitors of the Pit and Defts. Let the following
further account and inquiries be made and taken. 2. An account of
the profits made by the Defts by the use and exercise of the Pit's said
invention by the said Defts since the 4th July, 1859, the date of the
incorporation of the Defts' company. 3. An inquiry what sum of
money is fit to be awarded to be paid by the Defts to the Pit in
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INJUNCTIONS. 299
respect of any damages sustained by the Pit by the use and exercise
by the Defts of the the Pit's said invention since the said 4th July,
1859. Let the Defts pay to the Pit WUliam Betts his costs of this
cause up to this time, and his costs of the said trial (such costs to be
f>axed by the taxing master). — Adjourn further consideration. — Liberty
to apply. Betts v. De Vitre (V.-C. W.), Jan. 25, 1865 ; affirmed, L. E.
3 Ch. 429 ; varied, L. E. 5 H. L. 1, by making pit elect between account
of profits and damages.
Gom Mills — Injtmction — Inquiry as to Damages.
Let a perpetual injunction be awarded to restrain the Deft A. C,
his servants, agents, and workmen, for the residue of the term as
mentioned in the letters- patent of the 6th of June, 1863, in the
pleadings mentioned, from in any manner using, exercising, or putting
in practice, or continuing to use, exercise, or put in practice, at his
mills at Winchester or elsewhere, the Pit's invention and improve-
ments for which the letters patent of 1849 and 1863 in the pleadings
mentioned were granted, or any material part thereof, or any means,
apparatus, or arrangement merely colourably difltering therefrom.
Let the following account and inquiry be made and taken, viz. :
I. An account of aU com ground, or caused to be ground, by the
Deft, his servants, agents, or workmen, in his said mills or elsewhere,
by means of any machinery or apparatus erected or applied on the
principle protected by the Pit's said letters patent, or only colourably
differing therefrom. 2. An inquiry what damage the Pit has sustained
by reason of the user by the Deft of the Pit's said invention without
the Pit's licence. Let the Deft A. C, within twenty-one days after
the chief clerk shall have made his certificate of the result of such
account and inquiry, pay to the Pit the amount which shall be certi-
fied to be due to him. Let the Deft A. 0. pay to the Pit his full costs,
charges, and expenses of this cause, to be taxed by the taxing master
as between solicitor and client. — Liberty to apply. Bovill v. Crate
(V.-C. W.), June 14, 1867.
Paraffine Oil — Perpetual Injvmction after Trial at Law — Account —
Certificate that Validity of Patent came in question.
Let a perpetual injunction be awarded against the Defts to restrain
them, their servants, agents, and workmen, during the continuance of
the letters patent of the — day of — , in the pleadings mentioned, or
during any extension o:^ the term thereof, from manufacturing, selling,
or exposing for sale any paraffine oil, or oil containing paraffine, or
paraffine made according to the invention or specification of the Pit,
or in the manufacture or production of wbich any part of the said
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invention is used, and from in any manner infringing the rights and
privileges granted by the said letters patent.
Let an account be taken of all the paraffine oil or oil containing
paraifine and paraffine manufactured according to the said invention
of the Pit, which have been sold by the Defts or any of them, and of
the profits of any such sales. Defts to pay within one month after
certificate amount certified to be the amount of such profits. Let the
Defts deliver up to the Pit all the paraffine oil and oil containing
paraffine and paraffine in Defts' possession, which have been made or
manufactured according to the said invention or any part thereof.
Let a certificate be given pursuant to the Act 5 & 6 Will. 4, o. 83,
s. 3, and the 5 & 6 Vict. c. 97, and the 15 & 16 Viet. c. 83, that the
validity of the said letters patent came in question. — Directions for
payment of costs by Defts. Toung v. Femie (V.-C. S.), June 1, 1864 ;
L. E. 1 H. L. 63.
Inquiry as to Damages — Further Consideration adjourned.
Let an inquiry be made what damages the Pits have sustained by
the sale by the Deft John Eylands within six years prior to the filing
of the Pits' bill of any articles manufactured before the 13th Novem-
ber, 1865, the day of the expiration of the patent in the Pits' bill
mentioned, pursuant to the process the exclusive use of which was
granted by the letters patent in the Pits' bill mentioned. — Direction
for taxation of costs and payment by Deft. — Further consideration
adjourned. — Liberty to apply. Davenport v. Byldnds, L. E. 1 Eq. 302.
Inspection of Patent — Machinery — Samples.
Let the Pits, on or before the 22nd of December instant, deliver
to the solicitor of Deft Henry Jepson particulars in writing of the
breaches complained of, and that the Deft Henry Jepson do, on
or before the 24th of December instant, deliver to Pit's solicitor par-
ticulars in writing of any objections on which he means to rely at the
trial hereby directed. Let the Pits and Deft Henry Jepson, by their
solicitors and scientific witnesses, be at liberty from time to time, upon
giving three days' notice of their intention so to do, mutually inspect
the machinery heretofore used by the Pits and the said Deft in the
manufacture of chenille, and that the same niachine be put to work
upon such inspection ; and that the Pits and the said Deft do, by their
said witnesses and solicitors, be at liberty to take samples of the
chenille made or to be made upon the said machines. Let the Pits by
their solicitor and witnesses as aforesaid, be at liberty, upon the like
notice, to inspect the machinery or exhibits marked Y and Z 1, pro-
duced by the said Deft, and referred to as exhibits in certain affidavits
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INJUNCTIONS. 301
made in this case by William Smith, filed respectively the 24th of No-
vember and the 2nd of December, 1862, and to put his last-mentioned
machines to work, and to take samples of the product thereof. Bwoen-
port V. Jephson (V.-C. W.), 1 New Eep. 173.
Inspection of Patent — Machinery to he verified.
Upon motion for an injunction, &o.. Let the Deft W. W., on or
before the — day of — , or within seven days after service of this
order, make and file an affidavit stating the several kinds of machines
sold or exposed for sale by him since the 21st June, 1864. Let the
said Deft within four days after filing such affidavit produce one of
each kind of machine at the office of — , his solicitor, situate, &c.
Let the Pits, their solicitors and agents, together with J. B. and A. N.,
be at liberty at all seasonable times, upon reasonable notice, to inspect
the machines so produced. Singer Manufacturing Co. v. Wilson, 13 W. E.
660 ; 5 New Eep. 505.
Inspection of Patent — Samples for Analysis.
Let the Deft J. W. give to J. J. and E. F., the agents of the Pits,
liberty to inspect the type used in printing The Times newspaper, and
deliver to the said J. J. and E. P. a competent part of such type (not ex-
ceeding four ounces in weight) which has been so used in the printing-
ofBce of the said newspaper, the Pits by their counsel undertaking to
abide by any order this Court may make as to compensation. — Costs
of application costs in the cause. — Liberty to apply. Patent Type
Founding Co. v. Walker, Joh. Eep. 727.
Machines — Injunction — Affidavit — Machines to he marleed — Certificate.
Upon motion for a decree, &c., after the parties had proceeded to a
trial, &c.. Let an injunction be awarded against the Deft to restrain
him, his agents, servants, and workmen, during the subsistence of the
Pits' patent, in the bill mentioned, or any extension thereof, from
manufacturing, or selling, or disposing of, or using any machine of
the same construction as that supplied by him to the Westminster
Brewery Company in the bill mentioned, or only colourably differing
therefrom, or any other machine constructed according to the Pits'
patented invention, or only colourably differing therefrom, or being an
infringement of the Pits' said patent, and from in any way infringing
the Pits' said patent. Let the Deft, within seven days after service
of this order, make and file an affidavit stating what machiaes of the
same construction as that supplied by him to the Westminster Brewery
Company, including such machine, are in his possession or power.
And the Pits are to be at liberty to inspect and mark the same for the
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purpose of identification. Let an account be taken of the profits made
by tte Deft by making, using, selling, or disposing of the macHne
supplied by him to the said Westminster Brewery Company, or any
other machine of the same construction therewith, or otherwise by an
infringement of the Pits' said patent. Deft to pay within one month
after date of certificate the amount certified. Let a certificate be
given, pursuant to the Act 5 & 6 Will. 4, c. 83, 5 & 6 Vict. c. 97, and
15 & 16 Vict. c. 83, that the validity of the Pits' patent came in ques-
tion in this cause. Deft to pay Pits their costs of this cause up to and
including this hearing, and their costs of the trial by jury of the ques-
tions of fact directed to be tried by the order dated, &c., including the
costs of a special jury. — Liberty to apply. Needham v. Oxhy, 11 W. E.
852.
Injmiction refused — Accourtt to be Icept.
Upon motion for an injunction, &c., and the Defts by their counsel
undertaking to keep an account of all the soldered cartridges or sol'
dered cartridge-cases sold by them, Let the said motion stand over
until the hearing of the cause. Daw v. Eley, W. N. (1868), 232.
Letters Patent — Order to seal.
Let the letters patent applied for by the petitioner, and mentioned
in the warrant dated, &c., be sealed to him as of the 29th January,
1874, and the time for filing the petitioner's final specification thereon
be extended until the 29th day of August, 1874, Let the Eespondent
H. W. pay to the Petitioner J. H. his costs occasioned by the said
notice of objection and of this application, and consequent thereon,
such costs to be taxed by the taxing master of the Court of Chancery.
Be Harrison, L. E. 9 Ch. 631.
Patents — How obtained — Specifications.
"All monopolies, and all commissions, grants, licences, charters, and patents
heretofore made or granted, or hereafter to be made or granted, to any person or
persons, hodies politic or corporate whatsoever, of or for the sole buying, selling
making, working, or using of any thing within this realm .... shall be utterly
void and of none effect, and in no wise to be put in use or execution " : 21 Jac. 1
c. 3, s. 1.
" Provided nevertheless that any declaration before mentioned shall not extend
to any letter patent and grants of privilege for the term of fourteen years or
under hereafter to be made of the sole working or making of any manner of new
manufactures within this realm to the true and first inventor and inventors of
such manufactures, which others at the time of making such letters patent and
grants shall not use, so as also they be not contrary to law nor mischievous to the
state by raising prices of commodities at home, or hurt of trade, or generally
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INJUNCTIONS. 303
inconvenient : the said fourteen years to be accounted from the date of the first
letters patent or grant of such privilege hereafter to be made " : 21 Jac. 1,
c. 3, s. 7.
Charters granted to corporations and letters patent that concern printing, salt-
petre, gunpowder, casting ordnance, or shot for ordnance, and letters patent of any
office, are saved from the operation of sect. 1 of the Act 21 Jac. 1, c. 3, ss. 9
and 10.
The word " manufacture," in the Act 21 Jac. 1, c. 3, not only comprehends
anything made, but also the mode, method, and process of making a thing, apart
from its produce and results, such as a new machine, or a new combination of
machinery, or a new process, or an improvement of an old process : Kerr, 410,
citing Crane v. Price, 4 Mac. & G. 580 ; Morgan v. Seaward, 2 M. & W. 544 ;
Rex V. Wheeler, 2 B. & Aid. 345 ; Balstm v. Smith, 11 H. L. C. 223.
Under the 15 & 16 Vict. c. 83 (Patent Law Amendment Act), s. 1, the com-
missioners of patents for inventions are appointed. By sect. 4 every petition for
the grant of letters patent and a provisional specification has to be left at the
ofBce of the commissioners. These applications are referred to one of the law
ofBcers (sect. 7), who, if satisfied that the nature of the invention is rightly
described, may give a certificate of his allowance, which upon filing confers
provisional protection (sect. 8), or a complete specification may be deposited
(sect. 9).
The applications for letters patent must be advertised (sect. 12), and the
specifications and objections (if any) are then referred to the law officer, who has
power to order by or to whom the costs are to be paid (sects. 13 and 14). The
law officer has power to cause a warrant to be made for the sealing of letters
patent ; the Lord Chancellor has similar power with respect to the warrant ; and
the writ of scire facias lies for the repeal of any letters patent issued under the
Act in the like cases as the same would lie for the repeal of letters patent issued
under the Great Seal (sect. 15).
Letters patent issued under the Great Seal are valid for the whole of the
United Kingdom, the Channel Islands, and the Isle of Man (sect. 16). But no
letters patent (except in lieu of those lost, &c.) are to be issued after the explica-
tion of the protection conferred imder the Act (sect. 20).
AE letters patent to be granted under the Act (except letters patent granted
after filing complete specification) require the specification thereunder to be filed
in the Court of Chancery instead of being inroUed (sect. 27). AU letters patent
to be granted under the Act, except letters patent granted after filing complete
specification, require the specification to be filed in the Court of Chancery instead
of being inrolled.
The specification must so describe the invention as to place the public on a
footing of equality of knowledge with respect to it with the patentee ; and the
whole of the patentee's knowledge and every improvement in practice by him up
to the time of specification must be given : Kerr, 419.
If the specification omits anything which the patentee knows to be useful or
necessary, or does not communicate to the public the most beneficial mode known
to him of exercising the subject of the patent privilege, or if it is calculated in any
way to mislead, or is, on a fair interpretation, equivocal in its terms, or is too
broad and general, or if the process described in the specification does not produce
that which the patent professes to produce, the specification is bad, and the
patent is altogether void : Ibid.
The specification of a patent may describe the process to be adopted so insuffi-
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304 ' > INJUNCTIONS.
ciently as -to invalidate the patent, and yet disclose enough to shew that what
is claimed hy a subsequent patent is not new : Betts v. Neilson, L. B. 3 Ch. 429.
In testing the specification knowledge and means may be employed which have
been acquired since the date of the patent : S. C.
It is no objection to the grant of a patent that another person has been
making experiments and working towards a similar invention : Ex parte Henry,
L. B. 8 Ch. 167.
The deposit of a complete specification is not equivalent to the grant of
letters patent under the Great Seal, and does not prevent any other person who
had previously applied for a patent for a similar invention from obtaining such
patent : Ux parte Henry, L. E. 8 Ch. 167.
Where a patent has actually been sealed a second patent will not usually be
granted to another inventor, and the Lord Chancellor will not entertain the ques-
tion whether or not some one else who had previously applied was a prior inventor :
Hx parte Bates, L. B. 4 Ch. 577 ; but see Scott v. Young, L. B. 6 Ch. 274.
And where the law officer has reported that part of an invention is identical
with part of an invention the subject of an existing patent, a second patent will
not, except under special circumstances, be granted for that part : JEx parte
Manceaux, L. E. 6 Ch. 272.
Where rival applicants had applied on the same day for patents, and afterwards
agreed to withdraw opposition to each other, letters patent dated the day of
application were granted to one applicant although letters patent of the same date
had been granted to the other : In re Qething, L. B. 9 Ch. 638.
Where applications had been piade for two patents alleged to be similar, and
the patent of the second applicant had been sealed, the letters patent of the first
applicant were subsequently ordered to be sealed, the specifications shewing that
the inventions were not substantially similar : In re Harrison, L. B. 9 Ch. 631.
On the hearing of a petition for the Great Seal to be affixed to letters patent,
witnesses may be examined viva voce : In re Oething, L. B. 9 Ch. 633.
Patents — Injukctions, when granted.
Under the former practice it was not necessary that the validity of the patent
should be established at law before the Court interfered by injunction. Where
there has been a certain length of exclusive enjoyment the injunction was
granted: Universities of Oxford and Cambridge v. Richardson {per Lord
Eldon), 6 Ves. 689, 706 ; Earmer v. Plane, 14 Ves. 130 ; Sill v. Thompson,
3 Mer. 622.
Long and uninterrupted possession is to be considered such prima facie evidence
of title as to justify the Court in granting the injunction until the invalidity of
the patent, if it be invalid, is established : Stevens v. Keating (per Lord Cotten-
ham), 2 Ph. 333.
But if the evidence as to exclusive possession is not satisfactory, or if from
the nature of the alleged invention, or the conflicting evidence as to its novelty,
its validity appears doubtful, the Court did not grant an injunction until the
title was established at law : Collard v. Allison (per Lord Cottenham), 4 My. &
Cr. 487.
Where the patent is recent the Court has declined to act upon the presumed
validity or invalidity of the patent without the right being ascertained by a
previous trial : Hill v. Thompson, 3 Mer. 622.
But the recency of the patent did not render it as of course to require the
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INJUNCTIONS. 305
establishment at law of tlie title. The Coivrt will have regard to the case made
upon the pleadings and evidence : Gardner v. Broadbent, 2 Jur. (N.S.) 1041 ;
Clark V. Ferguson, 1 Giff. 184 ; Electric Telegraph Go. v. Nott, 2 Coop. C. C.
49 ; Sinard v. Levinstein, 10 L. T. (N.S.) 177.
Where the patent has been the subject of different suits all terminating favour-
ably to the patentee, in a fresh suit it was held that the patentee was entitled to
an injunction pending the trial of the legal right : Newell v. Wilson, 2 De G. M.
& Gr. 282. And this although a fresh fact was brought forward tending to
impeach the novelty of the invention : S. C.
But where a motion for new trial at law has been made lona fide, and there
has seemed some ground for granting a new trial, the Court has directed the
motion for injunction to stand over : Sill v. Thompson, 3 Mer. 622.
So, too, where a bill of exceptions has been tendered to the verdict at law :
Gollard v. Allison, 4 My. & Cr. 487 ; Sridson v. McAlpine, 8 Beav. 229.
But the Court will consider the whole circumstances of the case, and will not
withhold an injunction merely because a motion for new trial is made or bill of
exceptions tendered : Bridson v. Benecke, 12 Beav. 7.
Where the motion for an injunction is ordered to stand over until after the
title at law is established, the defts are usually put upon terms as to keeping
accounts : HiU v. Thompson, 3 Mer. 622 ; Bridson v. McAlpine, 8 Beav. 229.
Where a patent is once fairly established, and there is a clear case of infringe-
ment, the Court will before the hearing grant an interlocutory injunction : Daven-
port V. Jephson, 1 N. E. 178.
But an interim injunction will not be granted to restrain infringement of a
patent several years old but never established by legal proceedings, unless there
has been actual user of the patent for a considerable time : Plympton v. Malcolm-
son, L. E. 20 Eq. 37.
Where an injunction is applied for ex parte in patent cases it is incumbent on
the party making the application to swear as to his belief that he is the original
inventor, and that the invention had not been practised at the time when the
Ijatent was granted : Hill v. Thompson, 3 Mer. 625 ; Gardner v. Broadbent,
2 Jur. (N.S.) 1041.
When the Court has granted an injunction upon the terms of the pit bring-
ing an action, it will deprive the pit of the injunction if he does not commence
and proceed with his action with due promptness. But it will not do this if the
deft has been supine in the cause : Bickford v. Skewes (L. 0. Cottenham), 4 My.
& Cr. 498.
And where an interlocutory injunction to restrain an infringement of a patent
was moved for in a suit in which the bill was filed in July, and it appeared
that the pit wrote complaining of the infringement in the preceding Novem-
ber, and knew of the deft's proceedings in the previous August, the injunction
was refused on the ground of delay : Bovill v. Grate (V.-C. W.), L. E. 1 Eq. 388.
Where a pit has succeeded in shewing that at the filing of the bill he was
entitled to an injunction, the Court will not at the hearing refuse him an
inquiry as to damages under the 21 & 22 Vict. c. 27, although the patent
has expired pending litigation : Davenport v. Bylands, L. E. 1 Kq. 302 ; Order,
p. 300.
But where a biU was filed immediately before the patent expired, so that it
was plainly a decree to procure damages in Chancery rather than at Common
Law, it was dismissed : Belts v. Gillois, L. E. 10 Eq. 392.
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306 INJUNCTIONS.
Peepetual Injunction in Patent Cases.
In patent cases, unless the pit takes steps to bring the- matter before the Court
by motion before the hearing, he will not in general be entitled to a perpetual in-
junction at the hearing : Bacon v. Jones, 4 M. & 0. 433 ; Patent Type Founding
Co. V. Walter, Joh. Eep. 727.
Inspection op Patent.
The Court has jurisdiction in a patent suit to order inspection of the deft's
premises and machinery ; and, if necessary, to order that samples be taken : Mast
India Co. T. Kynasion, 3 Bli. 153 ; Sussell v. Cowley, 1 Web. Pat. Cas. 457 ;
Patent Type Founding Company v.' Walter, Joh. Eep. 727 ; Order, p. 301 ; Daven-
port V. Jepson, 1 New Rep. 308 ; Order, p. 300 ; Singer Manufacturing Co. v.
Wilsm-, 13 AV. R. 560 ; 5 New Rep. 505 ; Order, p. 301 ; Needham v. Oxley,
11 W. E. 852 ; Order, p. 301 ; Batley v. Kynock, L. R. 19 Bq. 90 ; Jud. Rules,
Order 52, rule 3.
But the Court will not order inspection of a deft's works and machinery unless
satisfied that the inspection is essential to the pit's case : Batley v. Kynock, supra.
Desteuction oe Deliveey of Articles.
All articles in possession of the deft made in violation of the patent may be
ordered to be delivered up or destroyed : Tangye v. Stott, 14 W. R. 386 ; Betts
V. De Vitre, 34 L. J. (Ch.) 289.
Bxit where a patent for a combination of machinery only has been infringed,
the Court will order the machines to he marked, not destroyed or broken : Need-
ham V. Oxley (V.-C. W.), 11 W. R. 852 ; Order, p. 301.
Account of Profits — Damages.
The right to an account of profits in respect of articles manufactured or sold in
violation of a patent privilege, is incident to the right to an injunction to restrain
future infringements : Kerr, 435.
The account is of all profits which the deft has actually made by the infringe-
ment of the patent for six years prior to filing the hill : Crossley v. Derby Gaslight
Co., 4 L. J. (N.S.) Oh. 25.
But if the pit be an assignee, the account will be taken from the date of the
registration of the assignment : Ellwood v. Christy, 18 C. B. (N.S.) 494 ; cited
in Kerr, 436.
An inquiry as to damages may be directed under the 21 & 22 Vict. c. 27.
And the form of inquiry in patent cases as to damages is, " what damage the
pit has sustained," and not "what damage, if any": Davenport v. Rylands,
L. R. 1 Bq. 302, 308 ; Order, p. 300.
And the Court may grant the inquiry as to damages, although the patent has
expired during the litigation : S. C.
An account of profits has been directed against the manufacturer infringing the
patent, and an inquiry as to damage against the person using the patent article :
Penn v. Bihby, L. B. 3 Bq. 308.
The rule that upon a decree against a party for the infringement of a patent the
patentee is not entitled (under the 21 & 22 Vict. c. 27, ss. 2, 5) to have both an
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INJUNCTIONS. 307
account of profits and an inquiry into damages is now established, and applies to
every case of infringement : De Vitre v. Betts, L. R. 5 H. L. 1 ; varying S. 0.
L. E. 3 Ch. 429 ; Order, p. 301.
When a pit neglected to ask for damages until a jury trying the issues had
given its verdict, the Court exercised its option by directing an account of profits :
Needham v. Oodey, 11 W. E. 852 ; Order, p. 301.
The deft must, if required to do so for the purposes of the account or the in-
quiry as to damages, set out the price, and profit, and names of the purchasers
of the patent articles, and the names and addresses of all persons from whom he
has received sums of money in respect of royalties or licences : Kerr, 436 ; Bowe
V. McKeman, 30 Beav. 547 ; Delarue v. Dickenson, 3 K. & J. 388 ; Crossley v.
Stewart, 1 New Eep. 426.
Costs in Patent Suits.
The judge may certify on the record that the validity of the letters patent came
in question ; and the record with such certificate being given in evidence in any
suit or action for infringing the letters patent, shall entitle the pit in any such
suit or action, on obtaining a decree, to his full costs, charges, and expenses, as
between solicitor and client, unless the judge shall certify that he ought not to
have such full costs : 15 & 16 Vict. c. 83, s. 43 ; Davenport v. Eylands, L. E.
1 Eq. 302 ; Order, p. 300.
i But the Act does not apply to the costs of a first trial (whether at law or of
issues of fact in the Court of Chancery), but only to the costs of a second trial :
Penn v. Bibby, L. E, 3 Bq. 308.
Trial of Issues as to Patent.
The pit in any action must deliver with his declaration particulars of the
breaches complained of in the said action, and the deft must deliver to the pit
particulars of any objections to the validity of the patent on which he means to
rely at the trial : 15 & 16 Vict. c. 83, s. 41. See Perry v. Mitchell, Web. Pat.
Cas. 269 ; Morgan v. Fuller, L. E. 2 Eq. 297 ; Needham v. Oxley, 1 H. & M.
248 ; Talbot v. La Boche, 15 C. B. 310 ; BatleyM. Eynoch (No. 2), L. E. 19 Eq.
229.
At the trial of such action no evidence shall be allowed to be given in support
of any alleged infringement, or of any objection impeaching the validity of the
letters patent, which shall not be contained in such particulars : 15 & 16 Vict.
c. 83, s. 41.
The place or places at or in which, and in what manner the invention is
alleged to have been used or published prior to the date of the letters patent, must
be stated in the particulars, and by the deft : Ibid.
And the deft's objections must state with precision the case which the pit has
to meet : Daw v. Eley, L. E. 1 Eq. 38 ; Penn v. BiVby, Ibid. 548.
But the deft will not be required to deliver particulars of his objections to the
patent where replication has been filed, and the Court has refused to direct issues :
Bovill V. Goodier, L. E. 1 Eq. 35.
Where the patent is impeached on the ground of want of novelty and prior
user of the invention, the deft will not be allowed in the course of the hearing
before the Court, without a jury, to introduce evidence of prior user not disclosed
by the particulars of objection, although such evidence may have only come to
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308 INJUNCTIONS.
his knowledge since the delivery of the particulars of objection. Semble that the
Court will give the deft leave, on short notice of motion, to amend his particulars
of objection so as to introduce such newly-discovered evidence : Daw v. Eley
L. E. 1 Eq. 38 ; Bovill v. Smith, L. R. 2 Eq. 459.
See also as to order for amendment of deft's objection : Penn v. Bibby, L. R.
1 Eq. 548.
A deft will not be allowed to add a totally new issue of fact not in any way
suggested by his answer to the issues already directed for triaL Semble, that in
order to raise such new issue the deft must file a supplemental answer : Morgan
V. Fuller (1), L. R. 2 Eq. 296.
In the absence of special circumstances, the ordinary issues in a patent suit
will be tried before the Court itself without a jury : Me Patent Marine Company
V. Ohadburn, L. E. 16 Eq. 447.
The practice prescribed by the 15 & 16 Vict. c. 83, s. 41, with respect to actions
at law for the infringement of letters patent, ought to be followed in Chancery
suits as nearly as possible: Finnegan v. James, L. E. 19 Eq. 72.
For form of issue in patent case, see Young v. Fernie, 1 De G. J. & S. 353 ■
Order, p. 299 ; and as to issues generally, a/nte, p. 41.
TRADE-MARKS.
Newspaper — Injunction.
Let the Defts, their servants, workmen, and agents, be restrained
until, &c., from printing, publishing, or continuing to print or publish
any newspaper or other periodical paper with or under the name or
style of The Penny Bell's Life and Sporting News ; or with or under
any name or style of which the name, style, or words of BelTs Life
shall form a part or in any way occur ; and from using the said name,
style, or title of Bell's Life by way of name, style, or title to any news-
paper or periodical without the licence or consent of the Pit. Clement
V. Maddich, 1 Giff. 98.
Newspaper — Injunction — Undertaking to change Name.
Let a perpetual injunction be awarded against the Deft to restrain
him, his servants, agents, and workmen, from printing, publishing, or
continuing to print or publish, any newspaper or other periodical
paper with or under the name Or style of The Iron Trade Circular, or
with or under any name or style of which the words Iron Trade Circu-
lar form part, in such a manner as to differ only colourably from the
name or style of the Pit's newspaper in the Pit's bill mentioned as
appearing thereon, as in the said bill mentioned, or otherwise so con-
trived as to lead the public to believe that the Deft's newspaper in
the said bill mentioned is the same as the Pit's said newspaper, or
from applying any such name or style as aforesaid to any newspaper
or periodical publication without the consent of the Pit. And the
Df:ft, by his counsel, undertaking to change the title of his said
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INJUXCTIONS. 309
newspaper to Griffithi' Iron Trade Circular, stay all furtlier proceedings.
No costs on either side. Cornsr. Griffiths (V.-C. M.), May 3, 1873.
Trade-marh — Steel Bars — Injunction.
Let the injunction granted in this cause on the — day of — to
restrain the Defis and each of them, their and each {>f their servants
and agents, until, &c., from stamping or impressing, or causing to he
stamped or impressed, oa any hars of steel or other pieces of steel the
names Crowley Millington, or either of them, or any of the names or
marks, or any matei ial part of any of the marks in the Pits' bill men-
tioned to be stamped by the Pits on bteel manufactured by the Pits, and
from manufacturing or causing to be manufactured, and also from sell-
ing or contracting to sell, any bars of steel or other pieces of steel
stamped with any of the said names or marks, or any material part of
any of the said marks, or any name or mark in imitation of any of the
said names, or any material part of any of the said marks, be made
perpetual against the said Defts respectively and their respective ser-
vants and agents. Millington v. Fox, 3 My. & Cr. 338.
Song — Title-page — Injunction.
Let an injunction be awarded against the Defts Charles Sheard and
James Atken to restrain them, their servants, and agents until, &c.,
from printing, publishing, selling, exposing for sale, or otherwise dis-
posing of the song ' Minnie Dale,' of any copy or copies thereof, or any
other publication containing a colourable imitation of the name, title,
or title-page of the Pit's said song, and from otherwise pirating the
said song ' Minnie,' or infringing the copyright of the Pits therein.
Chappdl V. Slieard, 2 K. & J. 122.
Trade-mark — Figure — Injunction.
Let an injunction be awarded to restrain the Defts, their agents,
servants and workmen, from and after the 31st May, 1865, and until,
&o., from selling or otherwise disposing of or exposing for sale any
packages of mustard to which the Pits' trade-mark, or the figure of an
ox, or any other figure or mark in imitation of the Pits' trade-mark,
or any label containing any such imitative mark or figure, has been
or shall be affixed, and also from printing or circulating, or causing
to be printed or circulated, any notices or other documents containing
such imitative mark. Let so much of the Pits' hill as seeks an account
against the Defts stand dismissed. Let the Defts Henry Taylor and
John Taylor pay to the Pits Eobert Harrison and Jacob Harrison
their costs of suit, to be taxed, &o. Harrison v. Taylor (V.-C. W.),
May 1, 1865.
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310 INJUNCTIONS.
Trade-mark — Liquorice — Injunction.
Let the Defts, their agents and servants, be restrained until, &c., from
stamping or marking, or causing or permitting to be stamped or marked,
upon any liquorice manufactured or prepared by them the word
' Anatolia,' or from colourably using any other word, and also from
selling or offering for sale any liquorice marked Anatolia, not being
of the Pits' manufacture ; and also from selling or offering for sale any
liquorice or preparation of liquorice not being of the Pits' manufacture,
so as to represent that the same has been manufactured by the Pits.
McAndrew v. Bassett (V.-O. W.), 33 L. J. (Ch.) 561.
Trade-marh — Wines — Injunction.
Let the Defts be restrained until, &c., from affixing or causing to be
afBxed to any casks of wine shipped to their orders the brand or mark
of a crown and the word " Seixo," or any other combination of marks or
words so contrived as by colourable imitation or otherwise to repre-
sent the marks or brands of the Fit, and from employing any marks
or words which should be so contrived as to represent or induce the
belief that such wines were Crown Seixo, or the produce of the Quinta
do Seixo,. 01- otherwise using the word Seixo without clearly distin-
guishing the same from the wine produced by the Quinta do Seixo.
Seixo V. Provezende (V.-C. W.), Jan. 17, 1865; L. E. 1 Ch. 192.
Trade-marh — Glenfield Starch — Injunction.
Let an injunction be awarded to restrain the respondent (the Deft),
his servants and agents, &c., from using the word " Glenfield " in or
upon any labels affixed to packets of starch manufactured by or for
him, and from in any other way representing the starch manufactured
by or for him to be " Glenfield Starch,'' and from selling or causing
the same to be sold as " Glenfield Starch," and from doing any act or
thing to induce the belief that starch manufactured by or for him is
" Glenfield Starch," or starch manufactured by the Appellants.— Ee-
spondent to pay costs of Appellants in the Courts below. Wotherspoon
V. Gurrie, L. E. 5 H. L. 509, 523.
Trade-marh — Eureka Shirts — Injunction.
Let a perpetual injunction be awarded against the Defts to restrain
them, their agents, servants, and workmen, from applying the mark or
title " Eureka" to any shirts manufactured by the Defts, or to any shirts
sold by them, unless such shirts be manufactured by the Pit, and from
selling or disposing of any shirts already marked with the mark or
title "Eureka," unless such mark shall have been applied by the Pit
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INJDNCTIONS. 311
and with. Ms sanction, and from issuing any boxes or packages con-
taining Bhirts upon or in whicli the mark or title " Eureka " shall he
applied to shirts not of the Pit's manufacture. Let an account be
taken of the profits made by the Defts in manufacturing and selling
and in selling shirts under the mark or title of " Eureka" since the
22nd February, 1870, the date of the filing of the Pits bill. Defts
to pay to Pit the amount certified to be due within fourteen days after
date of certificate. Directions for payment by Defts of the cost of
suit other than the costs of the appeal, and for return of appeal
deposit. Ford v. Foster, L. E. 7 Ch. 61] .
Teabe-marks.
" In every case in any suit at law or in equity against any person for forging or
counterfeiting any trade-mark, or for fraudulently applying any trade-mark to
any chattel or article, or for selling, exposing for sale, or uttering any chattel or
article with any trade-mark falsely or wrongly applied thereto, or with any forged
or counterfeit trade-mark applied thereto, or for preventing the repetition or con-
tinuance of any such wrongful act, or the committal of any similar act, in which
the pit shall obtain a judgment or decree against the deft, the Court shall have
power to direct every such chattel and article to be destroyed or otherwise dis-
posed of; and in every such suit in a Court of law the Court shall or may upon
giving judgment for the pit award a writ of injuDction or Injunctions to the deft
commanding him to forbear from committing, and not by himself or otherwise to
repeat or commit, any offence or wrongful act of the like nature as that of which
he shall or may have been convicted by such judgment, and any disobedience of
any such writ of injunction or injunctions shall be punished as a contempt of
Court ; and in every such suit at law or in equity it shall be lawful for the Court
or a judge thereof to make such order as such Court or judge shall think fit for
the inspection of every or any manufacture or process carried on by the deft in
which any such forged or counterfeit trade-mark, or any such trade-mark as
aforesaid, shall be alleged to be used or applied as aforesaid, and of every or any
chattel, article, and thing in the possession or power of the deft used or intended
to be or capable of being used for producing or making any forged or counterfeit
trade-mark alleged to be forged or counterfeit, or for falsely or wrongfully applying
any trade-mark ; and any person who shall refuse or neglect to obey any such
order shall be guilty of a contempt of Court " : ^5 & 26 Vict. c. 88, s. 21.
No man is allowed to use names, marks, letters, or other indicia by which he
may induce purchasers to believe that the goods which he is selling are the
manufacture of another person : Ferry v. Truefitt, 6 Beav. 73.
The name of the manufacturer, or any symbol or emblem, however unmeaning
in itself, or any system of numbers, may become the subject of a trade-mark :
Leather Cloth Co. v. American Cloth Co., 11 H. L. C. 523, per Lord Kingsdown ;
see also Young v. Macrae, 9 Jur. (N.S.) 822 ; Ainsworth v. Walmsley, L. E.
1 Eq. 518 ; Wotherspoon v. Currie, L. E. 5 H. L. 508 ; Order, p. 310 ; Ford v.
Foster, L. E. 7 Ch. 611 ; Order, p. 310; Eirst v. JDenham, L. E. 14 Eq. 542.
And the name of the place of origin from which an article has been produced
may be the subject of a trade-mark : McAndrew v. Bassett, 33 L. J. (Ch.) 561 ;
Order, p. 310 ; Wotherspoon v. Carrie, L. R. 5 H. L. 508 ; Eadde v. Norman,
L. E. 14 Eq. 348.
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312 INJUNCTIONS.
And a fancy name which designates a particular kind of article may be in
general use in price lists which circulate between manufacturers and retail
dealers without prejudicing the right of the inventor to the exclusive use of the
fancy name as a trade-mark in the sale of the article to the public : Ford v.
Foster, L. R. 7 Ch. 611.
It must he made out that the person sought to be restrained is selling his own
goods to persons who purchase them as being the goods of another : Burgess v.
Burgess, 3 De G. M. & Gr. 904 ; Graft v. Day, 7 Beav. 85 ; Farina v. Silverlock,
1 K. & J. 517 ; 6 De a. M. & G. 214 ; Welch v. Knott, 4 K. & J. 747 ; 8&ixo v.
Provezende, L. R. 1 Ch. 192 ; Order p. 310.
An injunction will be granted against the use of a trade-mark although such
use may originally have taken place in ignorance of the rights of the owner :
MilUngton v. Fox, 3 My. & Cr. 338 ; Order, p. 309 ; see also Francks v. Weaver,
10 Beav. 297 ; McAndrew v. Bassett, 10 Jur. (N.S.) 496.
Where a trade mark is not actually copied, the existence of a fraudulent inten-
tion is a necessary element in the consideration of the case. The party com-
plained of must he proved to have done tlie act with the frauduleut design of
passing off his own goods as those of the pit: Wotherspoon v. Currie, L. R.
5 H. L. 508.
It is not necessary, however, to shew an exact resemblance between the original
and the counterfeit. It is sufficient if there is sufficient resemblance as will
mislead an unwary purchaser : S. C.
If a trade-mark represents an article as protected by a patent, when, in fact, it
is not so protected, such a statement prima facie amounts to a misrepresentation
of an important fact, which would disentitle the owner of the trade-mark to relief
in a Court of Equity : Leather Cloth Co. v. American Cloth Co., 11 H. L. C. 523 ;
per Lord Kingsdown ; see also Perry v. IVuefitt, 6 Beav. 73 ; Bidding v. How,
8 Sim. 477.
But if a patent had existed, but since expired, and the term is not used as
indicating the existing protection of a patent, but as the name by which the
article has become known, misrepresentation would not be implied : Leather
Cloth Co. V. American Cloth Co., 11 H. L. C. 523 ; see also Edelsfen v. Vick, 11
I-Iare, 87.
By a recent Act, after the 1st July, 1876, a person shall not be entitled
to institute any proceeding to prevent the infringement of any trade-mark as
defined by the Act until registration in pursuance of the Act : 38 & 39 Vict,
c. 91, s. 1.
And the trade-mark must be tegistered as belonging to particular goods or
classes of goods, and registration of a trade-mark is to be deemed to be equivalent
to public use of such mark : 38 & 39 Vict. c. 91, s. 2.
For the purposes of the Act a trade-mark consists of one or more of the follow-
ing essential' particulars ; that is to say, a name of an individual or firm printed,
impressed, or woven in some particular and distinctive manner; or a written
signature, or copy of a written signature, of an individual or firm ; or a distinctive
device, mark, heading, label, or ticket ; and there may be added to any one or
more of the said particulars any letters, words, or figures, or combination of letters,
words, or figures ; also any special and distinctive word or words, or combination
of flgurt'3 or letters used as a trade-mark before the passing of this Act, may be
registered us such under this Act : 38 & 39 Vict. c. 91, s. 10.
See Tkade- Marks Rkqistration Act, 1875, ^os*, p. 742.
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INJUNCTIONS. 313
Account of Profits — Damages.
A man whose trade-mark has been taken is entitled to an account of profits :
Burgess v. Hills, 26 Beav. 2M ; Burgess v. Eatchey, 26 Beav. 249 ; Gartier v.
Carlisle, 31 Beav. 292 ; Harrison v. Taylor, 11 Jur. (N.S.) 408.
But where a person innocently sells goods bearing a spurious trade-mark,
although he will be restrained by injunction he will not be made to account :
Moet V. Couston, 33 Beav. 578.
A foreigner has a remedy by suit in this country for an injunction and account of
profits, although the goods may not have been manufactured or sold in this country :
Collins Co. V. Brmim, 3 K. & J. 423.
On an inquiry whether any and what damage has accrued to the pits from
the unlawful use by the deft of a trade-mark, the onus lies upon the pit to
prove special damage by loss of custom or otherwise : Leather Cloth Co. v. Hirsch-
field, L. E. 1 Eq. 299.
If a trade-mark is not only a trade-mark properly .so called, but contains state-
ments materially affecting the value of the goods to which it is affixed, these
statements must be judged like statements made in separate labels or advertise-
ments : Leather Cloth Co. v. American Cloth Co., 11 H. L. 0. 523, 543, per Lord
Kingsdown.
A publisher or author has either in the title of his work, or in the application of
his name to the work, or in the particular marks which designate it, a species of pro-
j;erty similar to that which a trader has in a trade-mark : Kerr, 478 ; Lord Byron v.
Johnstone, 2 Mer. 29; Seeley v. Fisher, 11 Sim. 581; Clement v. MaddicJc,
1 Giff. 98 ; Chappellv. Sheard, 2 K. & J. 117 ; Ohappell v. Davidson, 2 K. & J.
123 ; Maxwell v. Hogg, L. R. 2 Oh. 307.
As to the mode of taking the accounts see Cartier v, Carlisle, 31 Beav. 292 ;
Dent V. Turpin, 2 J. & H. 139 ; Leather Cloth Co. v. Eirschfidd, L. R. 1 Eq.
299.
CONFIDENTIAL COMMUNICATIONS, &c.
Solicitor — Confidential Information — Injunction.
Let an injunction be awarded until further order to restrain the Pits
Daniel Davies and Kohert Davies from employing Eichard Humphrey-
Jones and John Francis Belwood Fay, solicitors of this Court, or either
of them, as their solicitor or solicitors in this suit ; and also to restrain
the said E. H. Jones and J. F. B. Fay from acting as solicitor or solicitors
for the said Pits in this suit ; and also to restrain the said E. H. Jones
from communicating to the said Pits D. Davies and E. Davies,
or either of them, their or his counsel, clerks, attorneys, or agents,
any information relating to the agreements ia the pleadings men-
tioned which came to the knowledge of the said E. H. Jones as
solicitor to the Deft Amelia Marie Clough. Davies v. Clough, 8 Sim.
262, 269.
Trader — Becij>e — Injunction,
Let an injunction be awarded to restrain the Deft Moat, his agents,
servants, and workmen, until, &c., from selling or causing or pro-
curing to be sold under the title or designation of ' Morison's Universal
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314 INJUNCTIONS.
Medicine ' or of ' Morison's Vegetable Universal Medicine,' any medi-
cine made or manufactured by him the said Deft, or by or under
his order or direction, and also to restrain the Deft, his agents,
servants, and workmen, from making or compounding any medicines
according to the secret recipe or prescription in the bill mentioned,
and from in any manner using the said secret recipe or prescription
of or for compounding the said medicines or any part thereof. Morison
V. Moat, 9 Hare, 241.
Confidential Communications — Letters — Manu scripts.
The right and property of an author or composer of any work, whether of
literature, art, or science, in any such work unpublished, entitles the owner to
withhold the same altogether from the knowledge of others : Prince Albert v.
Strange, 1 Mao. & G. 25 ; Order, p. 294 ; Tipping v. Olark, 2 Hare, 393.
And the Court will interfere by injunction to prevent a title being set up
arising out of a violation of such right : Prince Albert v. Strange, supra ; Gee
V. Pritchard, 2 Sw. 402.
A man by sending a letter to another gives him a right to read and keep the
letter, ^but does not give him the right to publish its contents to the world:
Kerr, 187 ; Percival v. Phipps, 2 Yes. & B. 19,29 ; Palin v. Gather cole, 1 Coll.
565.
The right to an injunction in the above cases does not depend solely upon pro-
perty, but has its foundation in a bireach of trust, confldence, or contract: see
observations of Oottenham, L.O., in Prince Albert v. Strange, supra ; Abemethy v.
Hutchinson, 3 L. J. (Ch.) 209.
The Court will restrain a solicitor employed by a client to conclnde an agree-
ment from acting, as the solicitor of a person who had filed a bill to set aside the
agreement and from communicating any information relating to it : Davies v.
aough, 8 Sim. 262, 269 ; Order, p. 313. i
The injunctipn goes to restrain the client from employing the solicitor as well
as -the solicitor from being employed : Ibid. : Biggs v. Head, Sau. & So. 335 ;
Hobhouse v. Hamilton, Ibid. 359, n.
The Court will also restrain a solicitor from communicating to a person suing a
former client documents or matters of evidence in possession of the solicitor in
respect of such employment : Lewis v. Smith, 1 Mac. & G. 417.
The Court will not interfere where the work, the publication of which is sought
to be restrained, is of an injurious tendency : Southey v. Sherwood, 2 Mer. 435.
The Court will not restrain a person from divulging a trade secret : Newberry v.
Jamles, 2 Mer. 451 ; Williams v. Williams, 3 Mer. 160.
But the Court will restrain such person if he has entered into a contract, either
express or implied, upon the subject : Morison v. Moat, 9 Hare, 241 ; 21 L. J.
248; Order,, p. 313.
I
INJUNCTIONS AGAINST EAILWAY AND OTHER COMPANIES AND
CORPORATIONS.
Mailway Company — Oompulsory Purchase of whole of Hospital — Injunction.
Let an injunction be awarded against the Defts the Charing Cross
Railway Company to restrain them, their servants and agents, until
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INJUNCTIONS. 315
the hearing of this cause or further order, from issuing their warrant
for summoning a jury for all or any of the purposes in the notice
dated the 22nd of January, 1861, referred to in the Pit's hill men-
tioned ; and also from taking any proceedings whatever for acquiring
compulsorily the portion only of St. Thomas' Hospital referred to in
the said notice and in the Pit's bill mentioned. St. Thomas' Hospital
V. Charing Cross By., 1 J. & H. 400.
Bailway Compcmy — Nursery Garden — Whole of Land to be taken —
Let an injunction be awarded against the Defts the Metropolitan
District Eailway Company to restrain them, their attorneys, contrac-
tors, servants, and agents, until, &c., from entering upon or taking
possession of, and from proceeding to construct their railway or works
upon any part of the Pits' premises in the hill mentioned, until they
have paid to the Pits or properly secured the amount of the purchase-
money or compensation payable in respect of the whole of the said
premises, and from taking any proceedings in pursuance of the notice
dated the -^ day of — in the bill mentioned, or otherwise, to ascer-
tain the purchase-money or compensation payable in respect of part
only of the said premises. Salter v. Metropolitan District By. Co.,
ii. R. 9 Eq. 432.
Bailway Company — Land not bond fide required for Undertaking —
Injunction.
Let an injunction be awarded against the Defts the Manchester and
Leeds Eailway Company to restrain them, their solicitors and agents,
until the further order of the Court, from proceeding before a jury to
assess the value of and take under the powers of the Acts of Parlia-
ment in the pleadings mentioned, any larger or other part of the land
in the pleadings mentioned than will be required to enable the said
Defts to form a slope next to the said railway at the rate of two feet
horizontal to one foot perpendicular, besides twelve feet in breadth,
along the whole length of the said field. Webb v. Manchester and
Leeds By. Co., 4 My. & Cr. 116.
Bailway Company — Station to be erected — Injunction.
Let the Defts the Salisbury and Dorset Junction Eailway Company
within three calendar months from the date of this decree make and
erect a station at Alderholt,' in the parish of Cranbourne, in the
county of Dorset, in the Pit's hill mentioned.
Let the Defts the Salisbury and Dorset Junction Eailway Company
and the London and South "Western Eailway Company be restrained
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316 INJUNCTIONS.
until further order from allowing the said Salisbury and Dorset Junc-
tion Eailway to remain without a station for the reception, transmis-
sion, egress, and ingress of passengers and goods along their said line
of railway according to the terms of the covenant contained in the
indenture dated, &c., in the Pit's hill mentioned. But the operation
of the said injunction is to he suspended until after the expiration of
three calendar months from the date of this decree. Let the Defts the
companies pay to the Pit his costs of suit, to he taxed, &c. Churchill
V. Salisburtj and Dorset By. Go. (V.-C. B.), March 4, 1875.
Bailway Company — GoTwpensation to Owners — Injimction.
Let an injunction be awarded to restrain the Defts the East and
West India Docks and Birmingham Junction Eailway, their servants,
workmen, and agents, from keeping possession of the land and
premises in the Pits' bill mentioned and described, or any part thereof,
and from prosecuting the works of the said intended railway upon the
said land and premises, until the value of the rights and interests of
the Pits therein have been ascertained and due payment of such value
made or secured to the Pits in manner by the companies' respective
Acts of Parliament required, or until the said Defts shall have fully
answered the Pits' bill, or until further order. Banhen v. East India
Bocks, 12 Beav. 298.
Bailway Company — Compensation to Ovmers — Injunction.
Let the Defts the East London Eailway Company, their servants,
agents, and workmen, be restrained until, &c., from digging or break-
ing up the soil of any part of the strips of lands situate, &c., in the
Pit's bill mentioned, and from excavating any tunnel or other under-
ground workings through or in any part of the same, and from re-
moving or carrying away from the said lands any sand or gravel, and
from erecting or constructing any machinery, apparatus, or other
matter or thing on any part of the said lands, or otherwise committing
or doing any waste or damage thereon, or in or to the ground or soil
thereof, and from further disturbing, intermeddling, or interfering
with the possession or enjoyment of any part of the said land, until
the compensation payable to the Pit in respect of his right in the soil
thereof has been ascertained and paid or secured in accordance with
the provisions of the East London Eailway Act, 1865, and the Acts
incorporated therewith. Golebrooke v. East London By. Co. (M. R.),
April, 10, 1875.
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INJUNCTIONS. RIT
Bailway Company — Undertaking to treat — Motion to stand over.
Upon motion for an injunction, &o., and the Defts the railway com-
pany by their counsel undertaking to serve the Pits on or before the
— day of — with notice to treat under the Lands Clauses Consolida-
tion Act, 1845, for the purchase of the land in the bill mentioned, and
forthwith to apply to the Board of Trade for the appointment of a
valuer, and also undertaking within forty-eight hours after the date of
the certificate of the said board to deposit in the bank under the provi-
sions of the said Act the amount to be mentioned in the certificate of
the said board, the Court doth not think fit to make any order upon
the said motion, except that the costs thereof be costs in the cause.
Wooldridge v. Byde and Newport By. Co. (M. E.), Oct. 14, 1874.
Bailway Company — Injury to Adjoining House — Inquiry as to Damages.
Let an inquiry be made what sum of money ought to be paid by the
Great Eastern Eailway Company to the Pits in respect of the injury
done to the Pits by the said company having commenced operations to
pull down the messuage 24 High Street, Shoreditch, in the pleadings
mentioned, and to dig, excavate, and remove the ground or soil on the
south side of the said messuage, without taking in the first instance
all necessary precautions to prevent injury to the Pits' premises in the
bill mentioned. Defts to pay within a" month from date of certificate
the amount certified to be due. — Directions for taxation and payment
of costs. Biscoe v. Great Eastern By. Co., L. E. 16 Eq. 636.
Bailway Company — Begatta — Injunction.
Let a perpetual injunction be awarded against the Defts the North
Stafibrdshire Eailway Company to restrain them, their tenants,
of&cers, servants, and agents, and every of them, from holding, keep-
ing, or celebrating any regatta or other public amusements on the
lake or reservoir called or known by the name of the Eudyard Eeser-
voir, situate in Eudyard Vale, near Leek, in the county of Stafibrd,
in the pleadings mentioned ; and from using or employing any steam-
boats or other boats or vessels on or upon the said lake or reservoir for
the purpose of any such regatta or other public amusements ; and also
to restrain the said Defts, their tenants, officers, servants, and agents,
from letting out boats on the said lake or reservoir for hire, and from
using the said reservoir for any other purpose to the injury or preju-
dice of the Pits, or for any other purpose than the purposes mentioned
in the Act intituled " An Act to enable the Company of Proprietors,
&o. to make a Navigable Canal," &c. Bostock v. North Staffordshire
By. Co., 3 Sm. & G. 283.
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318 INJUNCTIONS.
Railway Gompany-^Arreara of Dividends — Injunction.
Let an injunction be awarded to restrain the Eastern Union Eail-
way Company and Sir Samuel Bignold, T. B., &o., or other the direc-
tors of the said company for the time being, until the hearing of this
cause or further order, from declaring or paying any dividend on the
ordinary shares or stock of the said company without first paying or
satisfying the arrears of dividends due, as in the bill mentioned , at the
time of the passing of the Eastern Union Bail way Amendment Act,
1853, in respect of the preference stock or shares in the bill men-
tioned. And this order to be without prejudice to any question as to
the arrears of dividends between the time of the passing of the said
Act and of the redemption of such preference stock or shares. Sturge
V. Eastern Union By. Go., 7 De G. M. & Q. 168, 169.
Bailway Gdmpany — Extension of Bailway — Expenses — Injunction.
Lb:t an injunction be awarded to restrain the Defts G. E., H. G. B.,
&o., and the Defts the Oxford, Worcester, and Wolverhampton Bail-
way Company, until, &c., from using or applying the funds and
moneys of the said company for or towards the payment of any 'COsts,
charges, or expenses of or relating to, or in any manner occasioned by
the scheme for an extension railway in the Pits' bill mentioned, or the
soliciting or promotion thereof, or the bill introduced or about to be
introduced into Parliament as in the Pits' bill mentioned, or in any-
wise connected therewith, or from or by reason of any other bill or
scheme for the like purpose, and in particular from entering into any
contracts, agreements, or engagements in the name or on behalf of
the said railway company with reference to the proposed undertaking,
or any other scheme for the like purpose, or the promotion thereof, or
with reference to the said bill, or any other bill for the like purpose,
or the soliciting or promotion of any such bill ;
And also from excluding S. B., E. P. B., T. B., E. P., H. S., and
T. W., or any of them, or any other of the Great Western Railway
Company's directors of the Oxford, Worcester, and Wolverhampton
Eailway Company, from full and free access to and inspection of, and
obtaining full and complete information touching and concerning
all agreements, contracts, reports, ' correspondence, proceedings, acts,
matters, and things made, done, received-, passed, entered into, or had
by any of the directors, or officers, servants, or agents of the said
company relating to or concerning the said proposed scheme or under-
taking, or the solicitation or promotion of the said bill or any matter
preliminary thereto or connected therewith ; and also from excluding
the said S. B., F. P. B., &c., or any of them, or any other of the Great
Western directors of the said Oxford, Worcester, and Wolverhampton
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INJUNCTIONS. 319
Eailway Company from their full and free participation in, , and
management of the affairs of the said Oxford, Worcester, and Wolver-
hampton Eail-way Company, and from fuU and free access to all hooks
and papers and proceedings of the same company, and of the officers,
servants, and agents thereof, and from receiving fall information in
all respects as to the resolutions, deliberations, and proceedings of all
and every the committees of the same hoard of directors appointed
and to be appointed. Great Western By. Co. v. Bushout, 5 De G. &
Sm. 290.
Bailway Company — Costs of Suit not instituted hy it — Injunction.
Let an injunction he awarded against the Defts to restrain them
and the Dublin Trunk Connecting Eailvsray Company, their servants
and agents, until, &c., from paying or applying any moneys or funds
of or belonging to the said company, which are now in their or any
of their hands, or under their or any of their control, or which shall
or may be received by or come into their hands, or under their or any
of their control, for or towards the costs, or costs, charges, and ex-
penses of the Pits of or in the suit of W. v. 0. in the bill men-
tioned. Kemaghan v. Williams, L. E. 6 Eq. 288.
Bailway Company — Capital Account wrongly charged — Injunction.
The Court being of opinion that one moiety of the charges for the
directors and auditors and office expenses has been improperly charged
on former occasions of dividends being declared to capital account, and
that interest on the difference between £449,3:30 and £1,331,320
debentures is not, nor is any part thereof, properly chargeable to
capital account, and that the statement and account issued by the
directors this day is founded upon accounts making the same charges
to capital account, and the Pit undertaking, &c.. Let an injunction
be awarded against the Defts the Metropolitan Eailway Company to
restrain them and the Defts, directors of the said company, from
declaring or paying any dividend except so far as the profits and other
income of the said company may be applicable to such dividend, regard
being had to the provisions of the special Acts authorizing the several
undertakings of the said company, and those of the Companies Clauses
Consolidation Act, 1845. Bloxam v. Metropolitan By. Co., L. E. 3 Ch.
337, 346.
Bailway Companies — Bunning of Trains — Inquiries — Injunction.
The Court being of opinion that the Pit is entitled in the first
mentioned ■ suit to an injunction as prayed against the Defts the
railway companies, with reference to the running of trains over his
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320 INJUNCTIONS.
land, or otherwise using the same for their purposes without his con-
sent, an4 the Pit submitting in lieu of such injunction to have paid
to him the present value of the land recovered by him in ejectment,
such value to be ascertained by the Court, including what is proper to
be paid for mesne profits in respect of the user of such land by the
Defts the railway companies for six years before the filing of the
bill in the first-mentioned suit up to the settlement of the amount of
such mesne profits as hereinafter, and the alternative being ofiered by
the Court to the Defts the railway companies either to have such an
injunction as aforesaid granted, or to pay to the Pit such value and
mesne profits as aforesaid, and the Defts the railway companies
preferring the latter of such alternatives :
1. Let an inquiry be made what is the present value of the land of
the Pit recovered by him in the said ejectment. 2. An inquiry what
further sum is proper to be allowed and paid to the Pit as and for
mesne profits in respect of the user by the Defts the railway com-
panies, or either of them, of the Pit's land since the — day of — , being
the commencement of six years next preceding the filing of the Pit's
bill in the said first-mentioned suit. Directions for payment of
amount certified. Judgment obtained by Pit against the Defts the
Great Western Kailway Company to stand as a security for amount
due in respect of such value of land and mesne profits. Upon pay-
ment by the Great Western and Brentford Eailway Company to the
Pit J. S. of the amount certified to be due, the Pit and all proper
parties, at the expense of the Defts, the said company, to convey the
said land and vacate the said judgment. Let an injunction be
awarded in Ihe second-mentioned suit to restrain the Defts the said
company from further proceeding in the matter of the inquiry before
the jury in the bill referred to. — ^Directions for payment of costs.
Stretton v. Great Western By. Go. (V.-C. B.), July 21, 1870.
Bailway Company — Manufacture of Locomotive or Rolling Stock for Sale
or Hire — Injunction.
Let an injunction be awarded against the London and North
Western Eailway Company to restrain them, their directors, servants,
and agents, until, &c., from manufacturing locomotive engines or
other rolling stock for sale or hire, or for any other purpose except for
the purpose of being used by the London and North Western Eailway
Company upon any railway worked and used by them or some part
thereof; and also from letting for hire any locomotive engines or other
rolling stock except for the purposes of the traffic on another railway
in extraordinary emergencies ; and from repairing any locomotive
engines or other rolling stock not belonging to the London and North
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INJUNCTIONS. 321
Western Railway Company except when required by the exigencies of
their traffic.
But this injunction is not to extend to prevent the London and
North "Western Eailway Company from occasionally letting for hire
locomotive engines or other rolling stock manufactured, or purchased,
or otherwise acquired by them for their own use to contractors work-
ing on the company's line of railway, or on any line worked by the
London and North Western Eailway Company, or to the proprietors of
collieries and works adjoining their railway, or any railway worked by
them. Nor is this injunction to extend to prevent the said railway
company from building locomotive engines and other rolling stock
for and selling them to the Manchester and South Junction and Altrin-
cham Eailway Company for use on the line of railway of the last men-
tioned company. Defts the company to pay costs of suit. — Liberty to
apply. The Attorney-General v. London and North Western Bailway
Oomjpany (M. E.), Dec. 16, 1875.
Corporation — Special Lease — Injunction.
Declare that the Defts, the mayor, aldermen, and burgesses of the
borough of Great Yarmouth, are not authorized under the provisions
of the Act made and passed, &c., to grant the lease in question to the
Deft Charles Moore, in consideration of such fine, at such rent, and for
such term as are in the pleadings mentioned. Let an injunction be
awarded to restrain the said Deft Charles Moore from accepting, and
the Defts, the mayor, aldermen and burgesses of Yarmouth from execut-
ing, the said lease. Att.-Gen. v. Corporation of Yarmouth, 24 Beav. 625.
Corporation — Charity — Renewal of Leases and Fines — Injunction.
Let an injunction be awarded to restrain the Defts the master and
brethren of the Hospital of St. Cross, near Winchester, and the Deft
Francis Earl of Guildford from making any further leases of any
part of the possessions, hereditaments, and property of the said
hospital, and from renewing any subsisting leases of any part thereof
upon fines, and from taking or receiving any sum in respect of any
fines to be taken upon any grants by copy of court roll of any of the
said manors, lands, possessions, and property, and also to restrain the
said Defts from receiving any part of the rents and profits and income
of, or arising from, any part of the said lands, hereditaments, and
property which belongs to the said Hospital of St. Cross, or to the
said Hospitel or Almshouse of Noble Poverty. Att.-Oen. v. St. Cross
Hospital, 17 Beav. 435.
Corporation — Public Recreation Ground — Injunction.
Declare that according to the true construction of the Act of
Parliament made and passed in the 7th and 8th years of the reign of
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322 INJUNCTIONS.
her present majesty Queen Victoria, intituled, &c., the piece of land
in the said Act and in the said information mentioned and described
as the north-western portion of the Marsh, and now known as the
Cricket Ground, ought to he used for the purposes of public recreation
only, and be subject to such rights of common and of recreation and
other public rights as are mentioned in the said Act, and that it is a
breach of trust in the Defts to remove the fair called the Above Bar
Fair in the sai^ information mentioned to, or permit the same to be
held in or upon the said piece of ground called the Cricket Ground, or
any part thereof, or in or upon the road called the Itchen Bridge
Eoad in the said Act, and order and decree the same accordingly.
Let a perpetual injunction be awarded to restrain the Defts, the
mayor, aldermen, and burgesses of the borough of Southampton, their
workmen, servants, and agents, from removing the said Fair called
" Atiove Bar Fair " to, or holding or permitting the same to be holden
upon the said piece of ground, being the north-western portion of the
Marsh mentioned in the said Act, and now called or known as the
Cricket Ground, or any part thereof, or upon the said road called
the Itchen Bridge Eoad, and from letting the said ground, or any
part thereof, to any person for the purpose of erecting booths, stands,
or other buildings, or permitted to be erected thereon any booth,
stand, or other building for the purposes of the said fair, and from
letting out the said piece of land, or any part thereof, for, or as, or
permitting the same to be used for, or as standing room for, any
waggons, carts, or other vehicles, or for the exhibition or sale ot
horses, oxen, sheep, or other cattle for the purposes of the said Fair. —
Defts to pay costs of suit. Attorney-General v. Mayor of Southampton,
1 Giff. 363.
Beligious Bodies — Incumbent improperly appointed — Injunction.
Let an injunction be awarded against the Deft F. M. to restrain him
until, &o., from performing divine service in the church of St. Mary,
Shrewsbury, and from reading therein the articles and other matters
required to be read by a curate licensed to a church on taking posses-
sion thereof ; and from doing or causing to be done any act, matter,
or thing to put himself into possession of the said curacy under or by
virtue of the said election, nomination, and licence, or any of them.
Attorney-General v. Earl ofPowis, Kay, 186.
Beligious Bodies — Preachers — Injunction against Interference with.
Let an injunction be awarded to restrain the Defts S., &c., from
taking possession of the pulpit in the chapel at, &c., vested in the
trustees of the indenture dated, &c., and from excluding the preacjiere.
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INJUNCTIONS. 323
or any of them, duly appointed by the major part of the trustees acting
ip the trusts of the said indenture to preach and officiate in the said
chapel, from preaching or officiating in the said chapel, and from in
any manner disturbing or interfering with the performance of divine
worship in the said chapel; and from in any manner intermeddling or
interfering with the trust premises : Stott v. Storey (V.-O. W.), July 18,
1860 ; Seton, 938.
Incorporated Company — Forfeitwre of Shares — Injunction.
Let an injunction be awarded to restrain the Defts Mitchell, Bell,
Bagshawe, &c., and the Chartered Bank of India, Australia, and
China, until farther order, from forfeiting or declaring to be forfeited
any shares in the said company on the ground either of non-payment
of any call or of non-execution of the deed of settlement in the
pleadings mentioned, and from selling or disposing of as forfeited on
either of such grounds any shares or share in the said company, and
to restrain the Defts H. and B. from executing the said deed of settle-
ment on behalf of the Pits, or the other subscribers to the said
company, or any of them. Norman v. Mitchell, 5 De G. M. & G. 648.
Incorporated and other Companies — Corporations.
All compames incorporating the Lands Clauses Act (8 Vict. c. 18) and the
Railways Clauses Consolidation Act (8 Vict. c. 20) with their Special Act, and
taking possession of lands under their summary powers, may be restrained by in-
junction as trespassers, if possession is not taken in strict accordance with the
Acts : Foolcs v. Wilts and Somerset By. Co., 5 Hare, 199 ; Manchester By. Co. v.
Oreat Northern By. Co., 9 Hare, 284 ; -Stone v. Commercial By. Co., 4 My. & Cr.
122, cited m Kerr, 304.
If the lands are in possession of a receiver or committee of lunatics appointed
by the Court, and the company proceeds without the sanction of the Court, an
injunction may be obtained : Tinh v. Bundle, 10 Beav. 318.
A company wiU be restrained from entering upon land until the moneys
awarded have been paid or deposited as required by the 84th clause of the Rail-
ways Clauses Act : Lee v. Milner, 2 T. & 0. (Ex.) 617.
But where a company let into possession of the land required for their railway,
and having given a bond for payment of the purchase-money, made default, it was
held that the landowner was not entitled, upon a bill for specific performance, to
have an injunction : Pell v. Northampton and Banbury By. Co., L. B. 2 Ch.
100, overruling Cosens v. Bognor By. Co., L. R. 1 Ch. 594.
"Whether the landowner might not be entitled to a receiver, or to have the
purchase-money paid into Court, guoere.
But a bill will lie to restrain a railway company from placing an obstruction
partly on a public footway and partly on land belonging to a rival railway, where
access to the station of the former is stopped : London and North Western By.
Co. V. Lane 'Mre and Yorkshire By. Co. L. B. 4 Eq. 174.
Y 2
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324 INJUNCTIONS.
The diversion of a stream is a " taking " within the meaning of the 85th clause
of the Lands Clauses Act : Ferrand v. Gorporation of Bradford, 21 Beav. 412.
Where a person is willing to sell to a company the whole of a house, building,
or manufactory, under the 94th section of the Lauds Clauses Act, the Court will
restrain the company from compulsory purchase of only a part of such premises :
St. Thomas' Hospital v. Charing Gross By. Go., 1 J. & H. 400 ; Order, p. 314 ;
Sparrow v. Oxford and Worcester By. Co., 2 De G. M. & G. 94.
Where a company has entered into possession under the 85th clause of the
Lands Clauses Act without making compensation to the mortgagees, the Court
will restrain the further proceedings of the company: Banken v. East India
Docks Co. 12 Beav. 298 ; Order, p. 316.
A railway ccfcapany will be restrained from taking lands under their parlia-
mentary powers not lona fide required for the purposes of their undertaking :
Webb V. Manchester and Leeds By. Co., 4 My. & Cr.-,116 ; Order, p. 315.
The Court will enforce by injunction the provisions of the 115th section of the
Bail way Clauses Consolidation Act as regards engines improper to be used :
Midland By. Co. v. Amhergate By. Co., 10 Hare, 359.
In the execution of their works railway companies must take reasonable pre-
cautions for the safety of adjoining houses: Bicket v. Metropolitan By. Co.,
L. R. 2 H. L. 175 ; Biscoe v. Great Eastern By. Co., L. R. 16 Eq. 636 ; Order,
p. 317.
For cases where the Court has enforced by injunction working agreements
between railway companies, see Wolverhampton, &c.. By. Co. v. London and
North Western By. Go. (L. C. for M. R.), L. R. 16 Eq. 433.
But a private person who applies for an injunction to restrain a company from
violating the provisions of an Act of Parliameat must satisfy the Court that he
will suffer substantial injury from the act complained of : Mayor of Liverpool v.
Charley Waterworks Co., 2 De G. M. & G. 860 ; Wintle v. Bristol and South
Wales By. Co., 10 W. R. 210; Stockport Waterworks Go. v. Mayor of Man-
chester, 9 Jur. (N.S.) 266 ; cited in Kerr, 544.
Companies incorporated for special purposes exist for those purposes only, and
if they exceed the limits of their jurisdiction may be restrained by injunction :
Frewin v. Lewis, 4 My. & Cr. 254 ; Mayor of Liverpool v. Charley Waterworks,
2 De G. M, & G. 860 ; Stockport Waterworks Co. v. Mayor, &c., of Manchester,
9 Jur. (N.S.) 266 ; Sare v. London and North Western By. Co., 2 J. & H. 109 ;
Bostock V. North Staffordshire By. Co., 3 Sm. & G. 283.
Railway companies have been restrained from carrying on business as coal
merchants: Att.-Qen. v. Great Northern By. Co., 1 Dr. & Sm. 154; from the
manufacture of locomotive engines or rolhng stock for sale or hire: Att.-Gen. v.
London and North Western By. Go. ; Order, p. 320 ; from applying the funds of
a company towards a steam packet company in connection with the railway :
Caiman v. Eastern Counties By. Co., 10 Beav. 1 ; from the purchase of shares in
another railway : Salomons v. Laing, 12 Beav. 339 ; from applying the funds of
the company to an extension railway, or the promotion of a Bill in Parliament
for that purpose: Great Western By. Co. v. Bushout, 5 De G. & Sm. 290;
Order, p. 318 ; Vance v. East Lancashire By. Co., 3 K. & J. 50 ; from applying
moneys raised to complete a branch to the purposes of the main line : Bagshaw v.
Eastern Union By. Co., 2 Mac. & G. 389 ; Cohen v. Wilkinson, 12 Beav. 134 ;
1 Mac. & G. 486 ; from letting out boats for hire : Bostack v. North Staffordshire
By. Co., 3 Sm. & G. 283 ; Order, p. 317.
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INJUNCTIONS. 325
So, also, they have been restrained from paying dividends on the ordinary stock
until arrears of dividends on the preference shares have been paid : Sturge v.
North Eastern Union By. Co., 7 De Gr. M. & 6. 158 ; Order, p. 318 (see also Craw-
ford V. North Eastern Bailw. Co., 3 E. & J. 723 ; Stevens v. South Devon By.
Co., 9 Hare, 325 ; Henry v. Ch-eat Northern By. Co., 1 De Gr. & J. 607 ; Mathews
V. Great Northern By. Co., 28 L. J. (Oh.) 373); and from the payment of
interest to shareholders out of capital or borrowed moneys before any profits had
been realized : Mucdougall v. Jersey Imperial Hotel Co., 2 H. & M. 528.
They have also been restrained from paying dividends except so far as the
profits and income of the company were properly applicable, having regard to
the charges and expenses attributable to income and not to capital : Bloocam,
V. Metropolitan By. Co., L. R. 3 Ch. 337 ; Order, p. 319.
So, also, from entering into illegal agreements with one another for amalgama-
tion : Charlton v. Newcastle and Carlisle By. Co., 5 Jur. (N.S.) 1097.
Injunctions have been granted to restrain the illegal forfeiture of shares:
Naylm' v. South Devon By. Co., 1 De Gr. & Sm. 32 ; Watson v. Bales, 23 Beav. 300 ;
Norman v. Mitchell, 5 De Gr. M. & Gr. 648 ; Order, p. 323 ; the insertion of a man's
name on the register of shareholders : Taylor v. Hughes, 2 J. & Lat. 24 ; the illegal
suspension of a shareholder from his rights : Adley v. Whitstahle Co., 17 Ves. 315 ;
19 Ves. 304 ; and to restrain a company from making calls upon one of its mem-
bers : Taft v. Sa/rrison, 10 Hare, 489 ; Smith v. Beese Biver Co., L. R. 2 Bq. 264.
The ownership acquired in land by a public company under their compulsory
powers for the purpose of their works is a qualified ownership, to be restricted to
purposes expressed in the Act. The landowner is entitled to an injunction to
restrain the use of the land for other purposes : Bostoch v. North Staffordshire
By Co., 3 Sm. & G. 283 ; Order, p. 317.
If corporate property be affected by a trust, the power and jurisdiction of the
Court to enforce and execute the trust attaches equally as it does upon other
property similarly circumstanced : Kerr, 570.
The application of the funds of municipal corporations to purposes not autho-
rized by their Acts has been restrained by injunction : Att.-Gen. v. Mayor of
Wigan, Kay, 274; Att.-Oen. v. Corporation of Norwich, 16 Sim. 225 ; 21 L. J.
(Ch.) 139; Att.-Qen. v. Corporation of Yarmouth, 21 Beav. 625; Order, p. 321.
And a vestry has been restrained from applying one class of rates and receipts
in supplying the deficiencies in another class of rates : Att.-Oen. v. Corporation
of Thetford, 8 W. B. 467.
In the case of eleemosynary corporations, where the visitor commits a breach
of trust, the Com't has interfered by way of injunction: Att.-Qen. v. St. Cross
Hospital, 17 Beav. 435 ; Order, p. 321 ; Daugan v. Bivas, 28 Beav. 233 ; Att.-
Oen. V. Smythies, 2 My. & Cr. 135.
In the case of spiritual or ecclesiastical corporations where there is a trust the
Court will interfere by injunction to restrain breaches of it: Att.-Oen. v. St.
Cross Hospital, 17 Beav. 435 ; Order, p. 321 ; Att.-Oen. v. Earl of Powis, Kay,
186 ; Order, p. 322.
Where the right of nomination to a benefice is in question, injunctions may be
granted restraining the presentation : Edenborough v. Archbishop of Canterbury,
2 Russ. 93 ; Att.-Oen. v. Cuming, 7 Jur. 187, 191 ; 2 Y. & C. 139 ; Nicholson
V. Knapp, 9 Sim. 326.
And the Court has restrained the bishop of the diocese from taking advantage
of a lapse pending the suit : Nicholson v. Knapp, 9 Sim. 326.
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326 INJaNCTIONS.
THID MERCHANT SHIPPING ACTS, 1854 to 1875.
Sale of Ship prohibited.
Upon' motion, &c., by counsel for J. E. de W., a member of the firm
of De W. & Co. of Liverpool, and upon reading, &o., and the said J. E.
de W. undertaking as to damages, &c., in case the Court should here-
after be of opinion that any person or persons shall have sustained
any by reason of this order -which the said J. E. de W. ought to pay,
this Court doth prohibit any dealing with the British ship Lily for
six weeks from this time or until further order. Se Hie Lily{V.-G. W.),
Feb. 18, 1866.
Payment into Court — Inquiries — Injunction.
Let the Pit on or before the 16th December, 1867, pay into the
bank to the credit of this cause £4700 11«. 6d. (being £4488 128. 6d.
for tonnage, calculated at the rate of £8 per ton for every ton, of
661 tons and eight-hundredths of another ton, the gross tonnage,
without deduction on account of engine-room, of the ship Velasquez
in the bill mentioned, and £211 19s. for interest on such amount
at the rate of £4 per cent, per annum from the 11th October, 1866,
up to the 16th December, 1867). Invest and accumulate. Let an
inquiry be made to ascertain what persons are entitled to claim
in respect of the loss of the barque Star of Ceylon in the bill men-
tioned, and of the goods, merchandise, and things on board of her
at the time of the collision with the said ship Velasquez as in the bill
mentioned, and in respect of the damage or loss (if any) to any goods,
merchandise, or things on board the said ship Velasquez at the time
of the said collision, and for what amounts respectively ; and for that
purpose Let advertisements be published in the London Gazette and
such other public papers as the judge shall think fit for all persons
claiming in respect of the said barque Star of Ceylon, or of the goods,
merchandise, and things on board her at the time of the said colli-
sion with the said ship Velasquez, or in respect to the damage or
loss to any goods, merchandise, or things on board the said ship
Velasquez at the time of the said collision, to come in before the judge
and make out their claims. Let a peremptory day be fixed for that
purpose. Let an inquiry be made how any bank annuities and cash
on the credit of this cause ought to be apportioned amono- the Defts
and other claimants who shall establish their claim in respect of the
matters aforesaid. Pit to pay Defts' costs of certain proceedings in the
Admiralty Court. Upon payment Let an injunction be awarded
against the Defts to restrain them, their attorneys and agents, from
further prosecuting the proceedings in the High Court of Admiralty
commenced by them against the said ship Velasquez and her freight,
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INJUNCTIONS. 327
and from commencing or prosecuting any other action or actions in
respect of the loss of the barque Star of Ceylon in the Pit's bill men-
tioned, and any goods, merchandise, and things on board her respect-
ively. Adjourn further consideration. — Liberty to apply. Saeny v.
Briggs (V.-C. W.), Nov. 16, 1867.
Similar Order — Apportionments to he paid.
The Pits by their counsel alleging that the gross tonnage, without
deduction on account of engine room, of the steam tug Betriever in the
bill mentioned is SOO/^"^, and that the limit of the amount which
they are liable to pay in respect of the losses in the fourth paragraph
of the Pit's bill mentioned, calculated at the rate of £8 per ton, is the
sum of £2402 8«., Let the Pits the New Steam Tug Company,
Limited, on or before the — day of — pay into Court to the credit of,
&c., the sum of £2435 Is. od., such sum being made up of the said
sum of £2402 8s., together with £32 13s. 5d. for interest at the rate of
£4 per cent, per annum from the 9th May, 1874, to the 10th Septem-
ber, 1874. Invest and accumulate. Let an injunction be awarded to
restrain the Defts W. S. and E. D., their proctors, solicitors, and agents,
from commencing or prosecuting any suit or action in respect of the
collision in the bill mentioned, or any loss or damage occasioned
thereby (otherwise than in respect of any loss of life or personal
injury) until further order. 1. Let an inquiry be made what persons
are entitled to claim against the Pits as owners of the said steam tug
Betriever in respect of the said collision, or any loss or damage occa-
sioned thereby, otherwise than in respect of loss of life or personal
inquiry, and for what amounts respectively. Let, for the purposes
of such inquiry, advertisements be issued, &c. 2. Let an inquiry be
made what is the gross tonnage of the said steam tug Betriever with-
out deduction on account of engine room, and what is the amount at
the rate of £8 per ton on such gross tonnage of the Pit's liability
in respect of the damage done by the said steam tug as in the 4th
paragraph of the bill mentioned. And if it shall appear upon the
result of such inquiry that such amount exceeds the said sum of
£2435 Is. 5d. to be paid into Court as aforesaid. Let the Pits the
New Steam Tug Company, Limited, within twenty-one days after the
date of the chief clerk's certificate pay into Court to the like credit
such further sum of cash as shall be certified to be required with the
said sum of £2436 Is. 3d. to make up such amount. Let the amount
hereinbefore directed to be purchased be, upon the production of the
chief clerk's certificate of the result of such inquiry, sold, and out of
the money to arise by such sale, and the said money on deposit, and
any interest to be credited in respect thereof, and the said cash (if
any), the several amounts certified to be due to the several claimants
upon the result of fi^^lfRmSb^yikf^Sfti) *° *^® several persons
328 INJUNCTIONS.
to whom such amounts shall be certified to be due ; and that the
residue thereof be paid to the Pits the New Steam Tug Company,
Limited. But if the said money, interest, and cash (if any) shall not
be sufficient. Let the same be apportioned among the several claimants
in proportion to the amounts of their respective claims, and Let
such apportioned amounts be certified and paid fo such claimants
respectively. Pit to pay Defts' costs of suit, and to pay the claimants
who shall make out their claims such sums for costs as shall be certi-
fied to be due. — Liberty to apply. New Steam Tug Co., Limited, v.
Singleton (M. R.), July 31, 1874.
The Merchant Shipping Acts, 1854 to 1875.
Whenever any property in a sWp or share in a ship becomes vested by trans-
mission, on the death of any owner or on the marriage of a female owner, in any
person not qualified to be an owner of British ships, the Court of Chancery may,
if the ship is registered in England, upon the application of the unqualified per-
son, order such property to be sold, and the proceeds to be paid to the person
entitled under such transmission or otherwise, as the Court may direct : 17 & 18
Vict. c. 104, s. 62.
The order must contain a declaration vesting the right to transfer the ship or
share in some nominee of the Court : 17 & 18 Vict. c. 104, s. 63.
The application for sale must be made within four weeks after the occurrence
of the event on which the transmission has taken place, or within such further
time, not exceeding a year from such date, as the Court may allow; and if no
such application is made within such period, or the Court refuses to accede
thereto, the ship or share so transmitted is to be forfeited : 17 & 18 Vict. c. 104,
s. 64. ,
The Court may, upon summary application of any interested person made
either by petition or otherwise, and either ex parte or upon service of notice on
any other person as the Court may direct, issue an order prohibiting for a time
to be named in such order any dealing with such ship or share ; and it shall be
in the discretion of such Court to make or refuse any such order, and to annex
thereto any terms or conditions it may think fit : 17 & 18 Vict. c. 104, s. 65.
The liability of a shipowner in damages in respect of loss of life or personal
injury, either alone or together with loss or damage to ships, boats, goods, mer-
chandise, or other things, is limited to £15 per ton of the ship's toimage ; and
in respect of loss or damage to ships, goods, merchandise, or other things, whether
there be in addition loss of life or personal injury or not, to £8 per ton of the
ship's tonnage : 25 & 26 Vict. c. 63, s. 54.
Where any liability is alleged to have been incurred by any owner in respect
of loss of life, personal injuiy, or loss of or damage to ships, boats, or goods, and
several claims are made 6r apprehended in respect of such liability, proceedings
may be entertained at the suit of any owner for the purpose of determining the
amount of such liability, and for the distribution of such amount rateably
amongst the several claimants, and the Court of Chancery has power to stop all
actions pending in any other Court in relation to the same subject-matter : 17 & 18
Vict. c. 104, s. 514.
See also 34 & 35 Vict. c. 110 ; 35 & 36 Vict. c. 73 ; 36 & 37 Vict. c. 85 ; 38
& 39 Vict. c. 88.
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INJUNCTIONS. 329
The shipowner must pay into Court the amount for which he is liahle, together
with interest on the sum found due for damages : Straker v. ffartland, 2 H. & M.
570; 10 Jur. (N.S.) 1143.
He also pays, in the absence of special circumstances, the costs of all claimants
whose claims are established, including the costs of actions at law commenced
by any of such claimants but stayed by injunction : The African Steamship Co.
V. Swanzy, 2 K. & J. 660.
As to the amount of the liabilities of the shipowner, see Merchant Shipping
Amendment Act (25 & 26 'Vict. c. 63, s. 54) ; Glaholm'v. Barker, 34 Beav. 305 ;
affirmed L. R. 1 Uh. 223 ; S. C, L. B. 2 Bq. 598.
In an application under sect. 514 of 17 & 18 Vict. c. 104, the shipowner must
aver that he has incurred liability ia respect of some damage : Hill v. Andus,
1 K. & J. 263.
STOP ORDERS.
Common Form.
A. [the assignee] by his counsel [or solicitor] submitting to be bound
by the provisions of the Cons. Ord. xxvi., rule 1, Let no part of [or of
the share or interest of — in] the sum of £ — Consolidated 3 per
Cent. Annuities in Court to the credit of, &c., the account, &c. [or in
the sum of — cash on the credit of, &c.], or in any interest to accrue
on the said sum of stock, be sold, transferred [paid out], or otherwise
disposed of without notice to the said A. [If the sum of cash is to be
invested : Let no part of [the share or interest of — in] the sum of cash
standing to the credit of, &o„ be paid out except for the purchase of
Bank 3 per Cent. Annuities, and Let no part of the Bank Annuities to
be purchased therewith be sold, transferred, or otherwise disposed of
without notice to the said A.]
Assignee of Person who had obtained Stop Order.
B. the assignee of A. submitting, &c., Let B. be substituted for the
said A. as the person to whom notice is to be given before any sale,
transfer, payment, or other disposition of the Bank Annuities and cash
in the order dated the — day of — mentioned. Tench v. Clieese
(M. E.), Jan. 26, 1865.
Stop Order continued on Fund. to be carried over.
Let — in Court to the credit of, &c., be carried over to the credit
of, &c. And the said Bank Annuities [cash] and interest so to be
carried over are to continue subject to the restraint imposed by the
order dated the — day of — .
Chancery Paymaster's Cheque.
Let C. be restrained until further order from receiving the cheque for
£— drawn by the Chancery Paymaster in favour of — pursuant to the
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330 INJUNCTIONS.
order dated, &c., or The cheque for £ — drawn, by the — in favour of
— pursuant to an order dated, &c., is not to be delivered out by the
Chancery Paymaster until further order.
A stop order does not decide the rights of parties : Lucas v. Peacock, 9 Beav.
118. And it is unnecessary to state in the order that it is made " without pre-
judice": S. 0.
But where the fund has been paid in under the Trustee Relief Act the order
was made " without prejudice to the trustee's lien for costs " : Be Blunt,
10 W. E. 379.
An incumbrancer who has obtained a stop order and served it upon the Ac-
countant-General thereby obtains priority over an incumbrancer who has not done
so : Oreening v. Beckford, 5 Sim. 195 ; Swayne v. Swayne, 11 Beav. 463.
Prospective stop orders have been made : Cleveland's Harte Estates (V.-C. K.),
Jan. 17, 1862. But a similar order was refused where there was no certainty
that the fund would be brought into Court : Wellesley v. Mornington, 11
W. E. 17.
Where the assignor and assignee concur the stop order is obtained at chambers :
Mdmondson v. Earrison, 1 W. E. 140. If the assignor does not concur the
apphoation is by petition : Be Miller, 6 W. E. 238 ; Be Nowell, 11 W. E. 896.
The order for payment of an incumbrancer's claim should include the costs of
obtaining the stop order, otherwise those costs will be disallowed : Waddilove v.
Taylor, 6 Hare, 307.
Where a fund is sought to be charged (see CHAKGruG Okdbbs) a stop order must
be obtained to complete the creditor's title : Miles v. Presland, A My. & Cr. 431 ;
2 Beav. 300.
Writs of Distringas.
" Any person claiming to be interested in any stock transferable at the Bank of
England standing in the name of any other person may sue out a writ of dis-
tringas pursuant to the statute 5 Vict. c. 8 [guoere, c. 5], as heretofore. Such writ
to be issued out by any officer of the High Court in London, where writs of
summons are issued " : Judicature Eules, Order 46, rule 2.
Where a writ of distringas has been placed upon stock standing in the name of
a person or body politic or corporate in the books of the Bank of England,
the bank is not authorized to refuse to transfer after eight days from a request
made by the person in whose name the stock is standing : Cons. Ord. xxvii.,
rule 4.
And the writ of distringas may be discharged by an order of the Court : Cons.
Ord. XXVII., rule 3.
CHAEGING OEDERS.
■ (1 & 2 Vict. 0. 110 ; 3 & 4 Vict. c. 82.)
Let the £ — Consolidated 3 per Cent. Annuities standing to the
credit of, &o., stand charged with the payment to — of the sum of £ —
with interest at £ — per cent, from the — day of ■ — until payment,
unless the Deft B. shall within one calendar month after service of
this order [or on or before the — day of — ] shew unto this Court good
cause to the contrary. And the applicant A. by his counsel submitting
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INJUNCTIONS. 331
to he bound by the provisions of the Cons. Ord. xxvi. rule 1, Let no
part of the said Consolidated Annuities be sold, transferred, or other-
wise disposed of without notice to the applicant A. until this order
shall be made absolute or be discharged.
Order Absolute.
Let the order dated, &c., be made absolute. Let the £ — Bank
3 per Cent. Annuities standing to the credit of, &o., stand charged
with the payment to the Petitioner A. of the sum of £ — with interest
at £4 per cent, from, &o., until payment.
Order Nisi charging Bank Annuities [not in Gourt\ with Taxed Costs.
Lfit the £ — Bank 3 per Cent. Annuities standing in the name of
the Deft B. in the books of the Governor and Company of the Bank
of England stand charged with the sum of £ — , being the amount of
the taxed costs of the Pit of, &c., by the order dated, &c., directed to
be paid by the Deft B. to the Pit A., together with interest on the said
sum at the rate of £4 per cent, from the — day of — until payment,
unless the Deft B. shall within one calendar month after service of
this order [or on or before the — day of — ] shew unto this Court
good cause to the contrary. And Let the Governor and Company of
the Bank of England be restrained from permitting a transfer of the
said Bank Annuities in the meantime and until this order be made or
be discharged.
Order Nisi charging Barik Annuities in Court.
Let the £ — Bank 3 per Cent. Annuities standing to the credit of
the cause A. v. B. stand charged with the payment to — of the sum
of £ — together with interest at the rate, &c., from the — day of — to
the day of payment, unless, &c. And the said — by his counsel sub-
mitting to be bound by the provisions of the Cons. Ord. xxvi., rule 1,
Let no part of the said Bank Annuities be sold, transferred, or other-
wise disposed of without notice to the said — . Scott v. Hastings,
4 K. & J. 633.
Order Nisi — Fund in Court charged with Sums ordered to he paid in
another Cause — Stop Order.
Let the interest hereafter to accrue during the life of the Deft
A. J. C. on the £220 Bank £3 Per Cent. Annuities standing to the
credit of. W. v. D., the account of the Defts A. J. C. and L. W. and
the children of the said L. W., stand charged with the payment to
the Petitioner the Pit T. W. of the sums of £2197 19«. 8d. like annuities,
and £1089 12«. Eeduced Annuities by the decree made in the cause of
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332 INJUNCTIONS.
W. V. C, dated 19 DecemlDer, I860, ordered to be transferred to the
Petitioner, and with interest thereon at the rate of — per cent, per
annum from the said 19 December, 1860, till payment, unless the said
Deft A. J. 0. shall within one calendar month from the service of this
order shew good cause to the contrary. And the Petitioner the Pit
by his counsel submitting, &o.. Let no part of the share or interest of
the said Deft A. J. C. of and in the said £220 Bank Annuities, or any
interest to accrue during the life of the said Deft A. J. C. in respect
thereof, be sold, paid out, or otherwise disposed of without notice to
the petitioner until this order shall be made absolute or discharged.
Ward V. Bavies (V.-C. W.), Jan. 19, 1872.
Order discharged on shewing Cause.
Tax a. [the party having obtained the order nisi] his costs of
and consequent upon the order dated, &c., and of this order. Let B.
pay to A. the said costs when taxed. Let upon such payment being
made the said order dated, &c., be discharged. Stanley v. Bond, 7
Beav. 386.
Chaeginq Okdees.
" An order charging stock or shares may be made by any divisional Court or
by any judge, and the proceedings for obtaining such order shall be such as are
directed, and the effect shall be such as is provided by 1 & 2 Vict. c. 110, ss. 14
and 15, and 3 & 4 Vict. c. 82, s. 1 " : Jud. Rules, Order 46, rule 1.
Judgments entered up against any person in any of the superior Courts at
Westminster operate as a charge upon all real estate : 1 & 2 Vict. c. 110, s. 13.
But no judgment creditor is entitled to proceed in equity to obtain the benefit
of the charge until after one year from the time of entering up such judgment :
Ibid.
He may, however, obtain an order to restrain the debtor from receiving the
dividends on the fund charged : Watts v. Jefferyes, 3 Mac. & Gr. 422 ; 15 Jur. 435 ;
see also Beece v. Taylor, 5 De G. & Sm. 480.
Decrees and orders of Courts of Equity for the payment of any sum of money
or of costs have the effect of judgments : 1 & 2 Vict. c. 110, s. 18. But no land
is to be affected by them until it has been delivered in execution by a writ of
elegit: 27 & 28 Vict. o. 112, s. 1.
Charging orders may be made by any of the superior Courts against stock and
shares in public funds and public companies belonging to the debtor and standing
in his own name or in the name of any person in trust for him : 1 & 2 Vict,
c. 110, s. 14. But no proceedings can be taken to have the benefit of the charge
until after six calendar months from the date of the order : Ibid.
The provisions of the 1 & 2 Vict. o. 110, are extended to any interest of the
judgment debtor in funds standing in the name of the Acoountant-General
[Chancery Paymaster] of the Court of Chancery or the Aocountant-General of the
Court of Exchequer : 3 & 4 Vict. c. 82, s. 1.
But no order of any judge as to funds standing in the name of the Accountant-
General of the Court of Chancery or Court of Exchequer is to prevent the
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INJUNCTIONS. 333
governor and company of the Bank of England, or any public company, from per-
mitting transfers in such manner as the Court shall direct : 3 & 4 Vict. c. 82, s. 1.
Every order of a judge charging any stock, funds, or annuities or shares in any
public company is to be made in the first instance ex parte ; 1 & 2 Vict.
c. 110, s. 15.
And the order, if any government stock, funds, or annuities standing in the
name of the judgment debtor in his own right, or in the name of any person in
trust for him, is to be affected by the order, shall restrain the Governor and Com-
pany of the Bank of England from permitting a transfer until the order is made
absolute or discharged : Ibid.
A similar provision is made as to shares in public companies : Ibid.
Every judgment debt is to carry interest at the rate of £4 per cent, per
annum from the time of entering up judgment : 1 & 2 Vict. s. 17.
But interest is not recoverable on costs directed to be raised out of an estate :
Att.-ffen. V. Nethercote, 11 Sim. 529.
Notice of a charging order to the Accountant-General [Chancery Paymaster] is
of no avail against a stop-order afterwards obtained by a subsequent purchaser
without notice : Warburion v. Sill, Kay, 470.
Where the charging order is made by the Court of Chancery the stop-order
may be added to the orders nisi and absolute : see Order, p. 331.
A charging order when made absolute operates from the date of the order nisi ;
Ball/ V. Barry, L. E. 3 Ch. 452.
WEIT OP NE EXEAT REGNO.
Common Order.
Upon motion, &c., and upon reading, &c., and the Pit by his counsel
undertaking as to damages, &c , Let a writ [or, one or more writs] of
ne exeat regno issue against the Deft A. imtil this Court make other
order to the contrary. And the said writ [or writs] is [or are] to be
marked for security in the sum of £ — in words at length and not in
figures.
When and how obtained.
The application for a writ of ne exeat is made by ex parte motion, and might
have been made before service of the copy of the bill. Dan. 5th Ed. 1543.
The application must be supported by evidence ot the existence of the debt and
of the intention of the party to go abroad. See JRoddam v. Eetherington, 5 Ves.
91, 95.
The demand must not only be equitable, but it must be a pecuniary demand,
and the money must be actually due : Whitehouse v. Partridge, 8 Swanst. 365,
377 ; Whitehead v. Bennet, 10 Jur. 3.
The affidavit in support must be positive ; and an affidavit as to information
and belief will not be sufficient : Boddam v. Eetherington, supra ; Barley v.
Nicholson, 1 D. & War. 66.
But in a suit for account it is sufficient if a pit swear that, according to the
best of his belief, a particular sum would be found due upon taking the account ;
Bico V. Qaidtier, 3 Atk. 501 ; JacJcson v. Petrie, 10 Ves. 164.
The writ will not be issued where the pit is resident abroad : Hyde v. Whitfield,
19 Ves. 342 ; Walker v. Christian, 7 Sim. 367.
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334 INJUNCTIONS.
' The writ may be issued against a party who is going abroad in the course of
his ordinary business ; Stewart v. Graham, 19 Ves. 313. But it will not be
granted against a feme coverfe administratrix: Pannell v. Taylor, 1 Dick, 107;
3 Atk. 409, per Lord Eldon.
In general the writ will only be issued upon the application of the pit, and
was only granted upon a bill filed : Ex parte Brancker, 3 P. Wms. 312 ; Anon.
6 Mad. 276,
Whether it can be obtained by a deft against a pit, qucere : see Whitehouse v.
Partridge, 3 Sw. 365, 374.
But in a suit for account it may be obtained by a deft against a co-deft : 2 Eq.
0. Ab. 5 ; Bone's Case, 1 P. Wms. 263.
And it may be obtained against a contributory under the Winding-up Acts :
Mawer's Case, 4 De G. & Sm. 349.
Writ discharged — Inquiry as to Damages.
Let the writ of ne exeat regno issued against the Deft M. pursuant to
the order dated, &c., and the said order be discharged with costs in-
cluding the costs of this application, to he taxed, &c., and paid by the
Pit S. to the Deft M. Let an inquiry be made what damages have
been sustained by the said Deft by reason of the said order dated, &o.,
having been made. Let the Pit S. pursuant to the undertaking con-
tained in the said order pay within one month after the date of the
chief clerk's certificate of the result of the said inquiry what shall be
certified to be due in respect of such damages to the said Deft M. —
Liberty to apply. Todd v. Dolman (V.-C. J.), Jime 23, 1870.
Writ discharged — Deft to give Security.
Upon the Deft M. giving security to the amount of £1000 with two
sureties (such security to be approved by the judge) to answer such
sum as may be found due from him in this cause. Let the writ of ne
exeat regno issued under the order dated, &c., be discharged. And Let
the said order dated, &o., be also discharged, except so much thereof
whereby it is ordered that the Deft should pay to Pit his costs of the
suit, to be taxed, &o.
The Court will discharge the writ upon tlie merits when it appears either that
the pit has no case, or that the deft is not going out of the jurisdiction : Leo v.
Lambert, 3 Buss. 417 ; Eechell v. Saphael, 4 L. T. (N.S.) 114.
The order may be discharged upon the deft giving security : Boddam v. Bether-
ington, 5 Ves. 91, 95 ; Boon v. Collingwood, 1 Dick. 115 ; or upon the delt paying
the sum into Court ; Evans v. Evans, 1 Ves. J. 96 ; Stewart v. Graham, 19 Ves.
313, 314.
When an application to discharge the writ is granted, the discharging order
ought, it is said, to restrain the person from bringing an action for false imprison-
ment : Barley v. Nicholson, 2 D. & War. 86.
The writ will not be discharged upon the mere ground that since it was
ordered the pit Jhas amended his bill, unless the amendments have varied the pit's
case : Grant v. Grant, 5 Euss. 189.
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( 335 )
CHAPTER XXIIT.
EECEIVEE.
Receiver — General Form,
Let a proper person be appointed to receive [or. Let A. of, &c., upon
first giving security, be appointed to receive] the rents and profits of
the real [or, freehold, or leasehold] estates [and to colleot and get in
the outstanding personal estate] of — the testator [or, intestate] in tke
pleadings [or, summons] named [or, the rents and profits of the real
estates comprised in the indenture dated, &c.]. And the tenants of the
said real [freehold, or leasehold] estates are to attorn and pay their
rents in arrear and growing rents to such receiver. [If ordered : Let
— deliver over to such receiver all securities in their hands for such
outstanding personal estate, together with all books and papers re-
lating thereto.] Let such receiver from time to time pass his accounts
and pay the balances which shall be certified to be due from him into
Court to the credit of, &c. Let such balances, when so paid in, be in-
vested in Consolidated~3 per cent. Annuities upon the like credit, and
let the dividends as they accrue upon such Annuities, and all accumu-
lations of dividends, be invested in like manner.
Receiver named mthout Reference to Chamherg.
This Court doth hereby appoint — , of, &c., upon his first giving
security [or, without giving security] to receive the rents and profits
of, &c. [and to collect and get in the outstanding personal estate],
in the pleadings named. And the tenants of, &c., are to attorn, &c.
[If ordered : Let — deliver over to such receiver all securities, &c., and
all books, &c.] And the said — is, on the — day of — next, and the
same day in each succeeding year, to leave at the chambers of the judge
his accounts as such receiver ; and is, within — days after the date of
the chief clerk's certificate of the allowance of each account, to pay the
balance which shall be certified to be due from him, or such part thereof
as shall be certified to be proper, into Court to the credit, &o. [Invest
and accumulate.]
Order made in Chambers after Reference from Court.
Upon the application, &c., and upon hearing the solicitor, &c., and
upon reading, &c., ^T^^^j^^SS^Vdros^oM^^ ~ ^^^ °^ ~ ^^^^^^
336 RECEIVER.
into by — , together with — and — as his sureties, which said recog-
nizance has been approved by the judge and duly inrolled, the judge
doth hereby appoint the said — to receive the rents and profits, &c.,
or to collect and get in, &c. llangimge from first order]. Let the said
— , on the — day of — next, and the same day in each succeeding
year, leave at the chambers of the judge his account as such receiver ;
and within fourteen days after the date of the chief clerk's certificate
of the allowance of such account, pay the balance which shall be certi-
fied to be due from him, or such part thereof as shall be certified tp be
proper, as directed by the said order dated, &c.
Order made in Chambers without previous Order — Recognizance prepared
beforehand.
Upon the application, &c., and upon reading a recognizance dated,
&c., which has been approved by the judge and duly inrolled, the
judge doth hereby appoint — ■, of, &c., to receive, &c. [and to collect,
&c.]. And the tenants of the said real [freehold, or leasehold] estate
are to attorn, &c. Let the said — , on the — day of — next, and the
same day in each succeeding year, leave in the chambers of the judge
his accounts as such receiver ; and, within — days after the certifi-
cate of allowance of each account, pay the balance which shall be
certified to be due from him, or such part thereof as shall be certified
to be proper, into Court to the credit, &c. [Invest and accumulate.]
Mortgaged Estate.
Let a proper person be appointed, &c., without prejudice to the
rights of any mortgagees or mortgagee of the said estates, or any or
either of them.
Prior Incumbrances — Inquiry — Interest.
Let a proper person be appointed, &c., " But the appointment of
such receiver is not to afiect any prior incumbrancers upon the said
estates who may think proper to take possession of the said estates by
virtue of their respective securities." Tenants to attorn, &o. Inquiry
as to incumbrances and priorities. Let such receiver out of the rents
and profits to be received by him keep down the interest and pay-
ments in respect of the said incumbrances according to their priorities,
and be allowed the same in passing his accounts. Directions to pass
accounts and pay in balances. Davis v. Duhe of Marlborough, 2 Sw.
115; Seton, 1027.
Seceiver [and Manager"] of Trade or Business.
Let a proper person be appointed to collect, get in, and receive the
debts now due and outstanding belonging to the [partnership] trade
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EECEIVER. 837
or business in the pleadings mentioned, carried on by — in the
pleadings named [and to manage the said business]. And such re-
ceiver is, out of the first moneys to be received by him to pay the
debts due from the said trade or business. [And either the Pit or
Deft is to be at liberty to propose himself as such receiver and mana-
ger without salary.] Let the Pit and Deft respectively deliver over
to such receiver all the stock-in-trade, goods, and effects of tlie said
[partnership] trade or business, and also all securities for such
outstanding debts and effects, and all books and papers relating
thereto. Directions to pass accounts, to pay in balances, and balances
to be invested.
Beceiver of Colliery Business— Dehts to be put in Suit.
[Decree for dissolution of partnership and for accounts.] Let a
proper person be appointed to take and have the management of the
colliery business, stock, and effects in the pleadings mentioned, until
the sale thereof hereinbefore directed, and to have the direction and
superintendence of the works of the said business, and to collect and
get in the outstanding debts and effects belonging to the said business.
And any of the Defts are to be at liberty to propose themselves as such
manager and receiver. Let the Pit and Defts deliver over to such
manager and receiver all securities in their hands for such outstanding
partnership debts and effects, together with all stock, goods, effects,
books, and accounts belonging to the said partnership. And in case
it shall be necessary to put any of the debts in suit for the recovery
thereof, the same is to be done with the approbation of the judge.
And such manager and receiver is to be at liberty to make use of the
names of the Pit and Deft who are to be indemnified therein out of the
stocks, goods, and effects of the said business, and out of the money to
be received in respect of the said debts by such manager and receiver.
Let such manager and receiver pay the debts due and to accrue due
from the said business, and from time to time pass his accounts ; and
after retaining in his hands such sum as shall be deemed sufficient for
carrying on the said colliery, pay the bal3,nces which shall be certified
to be due from him into Court, &o. Glegg v. Fishwick, 1 Mac. & G,'
294; Seton, 1031. •
Beceiver of Solicitor's Partnership Business — Special Glauses as to delivery
of Client's Papers.
Let a proper person be appointed to receive, collect, and get in the
outstanding debts due to the partnership, &c. Let the Pit and Deft
deliver to such receiver all partnership effects and securities in their
hands respectively for such outstanding partnership estate, and all
z
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338 EECEIVER.
deeds, books, and papers relating thereto. Let such receiver ont of
the money to be received pay the debts due and to become due from
the partnership, and from time to time pass his accounts and pay the
balances into Court, &c. Let the Deft on or before the — day of —
deliver to the Pit a list of the several deeds, books, papers, and
writings removed by him from the office of the late partnership. Let
previously to the appointment of the said receiver any of the deeds,
books, papers, and writings in possession of either of them, the Pit
and Deft, be delivered to the other in case the person or persons to
whom such deeds, books, and papers belong shall signify in writing
his or their wish that the same should be so delivered. Let the re-
ceiver after he shall have been so appointed, and after the said deeds,
books, and writings belonging to the said late partnership shall have
been delivered to him, in like manner on receiving such written
authority deliver the same to either of them, the said Pit and Deft.
But such delivery is to be subject to any lien the said late partnership
may have on such deeds, books, papers, and writings, or any of them.
SmUh V. Smith, 1854, B. 148; Seton, 1032. For special clauses as to
clients' papers, and preparation by receiver of bills of costs, see Clift
V. WaiJcin (M. K.), Nov. 11, 1875; Ormond v. Townsend (M. E.),
Deo. 16, 1875.
Becewer of Manor.
Let a proper person be appointed, &c.
Let such courts as have been usually held and are proper to be
holden for any manor or manors vested in — as trustees of the will of
the testator be from time to time held by the Said receiver in the
name or names of the person or persons in whom the legal estate may
be. Let the said receiver bring into his account all such fines or
other profits as shall be taken by them in respect of the said manors.
Thelusson v. Woodford, 1852, B. 1156 ; Seton, 1024.
Let a proper person be appointed to hold courts for the manor of
— . Let the Pit and Deft join in giving proper authorities to the
person so to be appointed to hold the said courts. Let the court rolls
and other necessary books and papers for holding the said courts be
delivered to him for that purpose. Barker v, Mariot, 1 767, A. 429 ;
Seton, 1025.
Receiver of Heir-looms.
Deft to pay into Court a deposit by way of security to a separate
account. In default of payment, Let a proper person be appointed to
have the care and custody of the several articles at B. particularly
specified and set out in the inventory in the bill mentioned, and which
are specifically bequeathed by the will and codicil of G., late Duke
of Marlborough, upon the trusts therein contained. Directions for
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RECEIVEB. 339
allowance to receiver, and for his giving security to " take due care
of such articles, and to deliver up the same as the Court -shall here-
after direct." Earl of Shaftesbury v. Dulce of Marlborough, 1820, A. 792 ;
Seton, 1025.
Beoeiver of Canal.
Declaration that the Pit and all others the mortgagees of the
Defts, the company of proprietors of the Worcester and Birmingham
Canal Navigation Company, are entitled to a. charge upon the naviga-
tion and rates of the Defts, payable by virtue of the Acts in the bill
mentioned, or any of them, for the repayment to the Pit and such
other mortgagees as aforesaid of the amounts of principal and interest
due, (fee, and are entitled to have such rates applied in or towards
payment of what shall be due to them. Account of what is due, &o.
Let a proper person be appointed to receive the income arising from
the said navigation, and from all and singular the rates granted to the
Defts the company by the said Acts of Parliament, or any of themi,
and now comprised in or subject to the said mortgage securities. Let
the person so to be appointed from time to time apply the income
arising from such navigation and rates as aforesaid in the first place in
payment of the current expenses attending such navigation, and in the
second place in the payment of the rents, interest, and other annual
charges payable in respect of the said navigation, or any part thereof,
or of any charges or incumbrances having priority over the said mort-
gages, in the third place in payment of the costs of the Pit and Defts
of this' suit [to be taxed, &c.], and in the fourth place in keeping down
the interest on the said mortgage securities. Usual directions. EJop-
hins V. Worcester and Birmingham Canal Co., L. E. 6 Eq. 437.
Beceiver of Bailway.
Lkt — , upon their respectively entering into such recognizances as
the judge shall direct, be appointed to receive the tolls and sums of
money arising upon or out of the said general undertaking. Let the
said receivers, out of the moneys received by them, pay all expenses
proper and necessary for the maintenance, management, and working
of the said general undertaking.— Directions for the receivers to pass
their accounts and pay their balances into Court. — Liberty to apply
in Chambers as to any payments to be made by the receivers and
generally. Gardner v. London, Chatham, and Dover By. Co. (V.-C. S.),
July 12, 1866.
Beceiver of Market.
Let a proper person be appointed to receive the tolls, dues, and
stallages of the Defts the mayor, aldermen, and burgesses of Brecon,
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340 EECEIVEB.
payable tinder and by -virtue of the Act of Parliament in the Pit's
bill mentioned, and to collect and get in any sums due or to become
due in respect thereof until further order.
Let the said receiver be at liberty to let the stalls, shops, standings,
places, shambles, benches, and other conveniences in the several
markets in the said Act mentioned, not disturbing any existing lease
or holding. — Usual directions. De Winton v. Mayor, &c., of Brecon,
26 Beav. 533 ; 5 Jur. (N.S.) 882.
Receiver of Docks.
Let a. W. P., the chairman of the trustees of the Birkenhead Docks,
be appointed receiver of the rates and tolls in the Pit's bill mentioned,
and of the rents and profits of the property therein mentioned, without
salary and without giving security. Directions for payment into
Court half-yearly of balances of the payment of costs, charges, and
expenses of carrying on the business of the Defts, and the arrears of
interest due and the interest to accrue due on the preferential mort-
gages in the bill mentioned. — Liberty to apply. Ames v. Trustees of
Birkenhead Docks, 20 Beav. 332.
Meceiver of Bectory.
Let a proper person be appointed to collect, get in, and receive the
tithes, issues, and profits of the rectories in the pleadings mentioned.
Let the receiver out of what he shall so receive pay and keep down
what is or may become due and payable for or in respect of the incum-
brances according to their respective priorities, &c. While v. Bishop
of Peterborough, 3 Sw. 109.
Meceiver of Pension.
Let a proper person be appointed to receive the arrears and grow-
ing payments of the annual service pension of £500 in the Pit's bill
mentioned, &c. — Usual directions. Noad v. Backhouse, 2 Y. & C. 529.
Beceiver and Manager — Agent abroad.
Let a proper person be appointed to receive the rents and profits,
&o. Let such receiver, with the approbation of the judge, appoint
a proper person or persons as his agent or agents in New South
Wales, or elsewhere, to receive such rents and profits, and to remit
the same to such receiver in this countiy, and to make such agent or
agents a proper allowance in respect thereof. Beceiver to pass
accounts, and pay in balances, &c. Underwood v. Frost, 1857, B. 643 ;
Seton, 1038.
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RECEIVER. 341
New Security.
Let the Deft, as the receiver appointed in this cause by the order
dated the 10th June, 1867, give a new security duly to account for
what he shall receive under the said order (such security to be settled
by the judge). Let the said Deft as such receiver pass his accounts
of receipts and payments as such receiver up to the date of such new
security, and pay the balance (if any) which shall be certified to
be due from him into Court to the credit of, &g., pursuant to the
said order. And upon such new security being given and payment
made as aforesaid. Let the recognizance dated the 16th May, 1867, be
vacated.
New Security — Surety deceased.
The judge having directed H. T., the receiver in this cause, ap-
pointed by the said order dated the 4th July, 1862, to give a new
security in the place of George Tinker, deceased, the surety named in
the recognizance dated the 14th July, 1862 : And the said H. Tinker
having given such new security by entering into a recognizance
together with G. G. and T. B. as his sureties, dated, &c., which has
been approved by the judge and duly inrolled, the judge doth hereby
continue the appointment of the said H. Tinker as such receiver,
and doth direct him to pass his accounts and pay the balance that
may be due from him, as directed by the said order. Let the said
H. T. pass his accounts up to the date of giving such new security,
and pay the balance which may be found due from him, as directed
by the said order dated the 4th July, 1862. And thereupon Let the
recognizance entered into by the said Henry Tinker together with —
and — as his sureties, dated, &c., be vacated. Gharlesworth v. Maigh
(M. E.), Feb. 6, 1871.
EeCETVER — WHEJf APPOINTED.
" A receiver may be appointed by an interlocutory order of the Court in all
cases in which it shall appear to the Court to be just or convenient that such
order should be made ; and any such ordtr may be made either imconditionally
or upon such terms and conditions as the Court shall think just" : 36 & 37 Vict.i
c. 66, s. 26, sub-s. 8.
An application for an order under the above sub -section may be made to the
Court or a judge by any party. If the application be by the pit it may be made
either ex parte or with notice, and if it be by any other party, then on notice to
the pit, and at any time after appearance by the party making the application :
Jud. Rules, Order 52, rule 4.
Except in the cases of infants, the Court had no power under its original juris-
diction to appoint a receiver unless a suit was pending ; and if the application
was made before decree it was not granted unless a bill had been filed containing
a specific prayer for a receiver : Dan. 5th ed. 1582 : Pare v. Glegg, 7 Jur. (N.S.)
1136 J 9 W, R. 216 .
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342 RECEIVER.
And a receiver could not be appointed before decree upon the motion of a deft :
Bobinson ^r.Heudley, 11 Beav. 614.
But a receiver might have been appointed before answer : Pitcher v. HelUer,
2 Dick. 580 ; Duckworth v. Traffwd, 18 Ves. 283 ; Davis v. Buke of Marl-
lorough, 2 Sw. 115 ; Aberdeen v. Chitty, 3 Y. & C. 379 ; and in cases of
urgency before appearance : Tanfield v. Irvine, 2 Buss. 149 ; Meaden v. Sealey,
6 Hare, 620 ; Hart v. Tulle, Ibid. 611.
And at the hearing oi- after decree a receiver might have been appointed
although not prayed by the bill, if circumstances required it : Osborne v. Harvey,
1 Y. & 0. 116 ; Bowman v. BeU, 14 Sim. 392 ; Wright v. Vernon, 3 Drew. 112.
After decree the application for a receiver may be made by one deft against a
co-deft: Hiles v. Moore, 15 Beav. 175.
After an administration decree a receiver might have been appointed in a suit
commenced by summons : Be Bywater, Sargent v. Johnson, 1 Jur. (N.S.) 227 ;
Brookes v. Brookes, 3 Sm. & G. 475.
Where a deft absconded to avoid service the appointment of a receiver has been
made on an ex parte motion : Bowling v. Hudson, 14 Beav. 423.
At the hearing of a redemption suit the Court would not, on the application of
the deft, grant a receiver against the pit, a mortgagee in possession, none being
prayed by the bill : Barlow v. Gains, 8 Beav. 329.
A receiver has been appointed upon the motion of the vendor of an estate
pending a reference as to title : Boehm v. Wood, 2 Jac. & W. 236.
So, too, upon 'the motion of the purchaser to rescind a contract for purchase of
a coal mine upon the ground of misrepresentation : Qibbs v. David, L. R. 20 Eq.
373.
Security — Salary — ^Accounts.
Where an order is made directing a receiver to be appointed, unless otherwise
ordered the person to be appointed shall first give security, to be allowed by the
judge and taken before a person authorized to administer oaths in Chancery, duly
to administer, &c. And the person so to be appointed shall be allowed a proper
salary for his care and pains ; Cons. Ord. 24, rule 1.
The allowance is generally £5 per^cent. upon the amount received, but this
percentage may be either increased or diminished : Day v. Graft, 2 Beav. 488 ;
4 Jur. 429.
And special allowances, beyond his salary may be allowed to a receiver : Potts
V. Leighton, 15 Ves. 276.
Where an application by a deft against a receiver was refused with costs, and
the deft was unable to pay the costs, the. receiver was held entitled to deduct his
costs as between solicitor and client from the balance in his hands : Courand v.
Hanmer, 9 Beav. 3, cited in Dan. 5th ed. 1596.
The judge shall fix the days upon which receivers shall ^annually or at larger
or shorter periods at his discretion) leave or pass their accounts, and also the days
upon which such receiver shall pay the balance appearing due on the accounts so
left, or such part thereof as the chief clerk shall certify as proper to be paid by
them : Cons. Ord. 24, rule 2.
And with respect to such receivers as shall neglect to leave and pass their ac-
counts, and pay the balances, the judge may not only disallow the salary, but also
charge the receiver with interest at the rate of £5 per cent, per annum upon the
balances neglected to be paid. Ibid.
A receiver who keeps money in his hands even for a quarter of a year after the
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EECEIVEE. 343
proper time will be charged with interest : Fletcher v. Dodd, 1 Ves. Jun. 85 ; 15
Ves. 273.
And the interest may be charged, although the accounts have been settled or the
receiver discharged : Eicks v. Hicks, 3 Atk. 274 ; Harrison v. Boydell, 6 Sim. 211.
Where the receiver, who had been discharged, had not paid in his balance, he
was charged with interest, both upon the balance and upon his salary : Harrison,
V. BoydeU, supra.
Upon a receiver's account being left in judge's chambers to be passed, a sum-
mons to proceed thereon shall be taken out ; and the account when passed shall
be entered by the solicitor of the receiver in books as heretofore ; and the affidavit
verifying the account so passed shall refer to it as an exhibit, and not be annexed
to it: Cons. Ord. 24, rule 3.
Upon an application at chambers to appoint a receiver, the expenses of a certifi-
cate, in addition to an order, may be saved by the recognizance being completed
and inrolled before the order is drawn up : Dan. 5th ed. 1589 ; Order, p. 336.
When a receivership has been completed, the book containing the accounts
shall be deposited in the office of the clerks of records and writs : Cons. Ord. 24,
rule 4.
Where the partira in the cause name the receiver, the Court will by consent
appoint him upon his own recognizance only: Countess of Carlisle v. Lord
Berkley, Amb. 599 ; Bidout v. Harl of Plymouth, 1 Dick. 68 ; Wilson v. Wilson,
11 Jur. 793 ; see also Hibbert v. Hihhert, 3 Mer. 681.
But the Court will not dispense with the usual security unless all parties are
«m juris and consent : Tylee v. Tylee, 17 Beav. 583.
The sureties must be resident within the jurisdiction : CocJcburn v. Raphael,
2 S. & S. 453.
The receiver may at any time apply to the Court to pay in balances in his
hands : Shaw v. Rhodes, 2 Euss. 539.
Where a manager is appointed of colonial property, security must be given,
except under special circumstances : Rutherford v. Wilkinson, Seton, 1036, 1038 ;
Dan. 5th ed. 1618.
Consignees appointed by the Court in an administration suit have a charge on
the property for payments sanctioned by the Court, in priority to incumbrances
created before the suit; and will be allowed interest on the balance due to
them : Dan. 5th ed. 1618 ; Morison v. Morison, 7 De G. M. & G. 214 ; 1 Jur.
(N.S.) 1100; 2 Sm. & Giff. 564.
The Persons appointed Eeceivees.
A party to the suit may by special leave be appointed receiver: Davis v.
Barrett, 13 L. J. (Oh.) 304. But unless by consent and by express order he
must act without salary : Powys v. Blagrave, 18 Jur. 462. A trustee who is a
party to the cause will not generally be appointed : FrugU v. Blake, 2 Moll. 50 ;
Sykes v. Hastings, 11 Ves. 363 ; Anon., 3 Ves. 515 ; nor as a general rule vrill
the Court appoint the next friend of an infant : Stone v. Wishart, 2 Mad. 64 ;
nor a solicitor in the cause : Oarland v. Garland, 2 Ves. 137. As to the ap-
pointment of members of parliament or peers of the realm, see Wynne v. luord
Newborough, 15 Ves. 283 ; Att.-Oem. v. Oee, 2 V. & B. 208.
Where a receiver is ordered of property being wound up by the Court, the
liquidator is generally appointed the receiver : Perry v. Oriental Hotels Co.i L. E.
5 Oh. 420.
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344 RECEIVER.
Evidence.
The application for a receiver must be supported by evidence of the facts relied
upon, and must, if the application was made before decree, have been founded
upon the allegations of the bill : Dan. 5th ed, 1584 ; Dawson v. Yates, 1 Beav.
301, 306 ; 2 Jur. 960.
The answer of the deft was for the purposes of evidence on the application to
be regarded merely as an affidavit of the deft ; and affidavits may be received and
read in opposition thereto : 15 & 16 Vict, c. 86, s, 59,
Effect of Appointment.
The possession of a receiver is deemed to be that of the Court, and any attempt
to disturb it without the leave of the Court is a contempt of Court, aud may be
restrained by injunction : Daniell, 5th ed. 1592, and cases cited.
Any undue interference with the receiver may also be punished by committal :
Broad v. Wichham, 4 Sim. 511 ; Ward v. Swift, 6 Hare, 312. See also Arms v.
Trustees of Birkenhead Docks, 20 Beav. 332.
As against parties to the suit the direction in an order that a receiver be ap-
pointed is equivalent to the order appointing him : Defries v. Creed, 11 Jur.
(N.S.) 360 ; 13 W. B. 632.
Where a sheriff has taken property, part of which is claimed by the receiver,
the latter will be ordered to give a list of the property claimed by him to the
sheriff, who will be ordered to withdraw from possession : Willmer v. Kidd, Seton,
1002 ; Dan. 5th ed. 1592 ; see Order, p. 346.
The sheriff will not be permitted to execute process after notice of the appoint-
ment of a receiver : Try v. Try, 13 Beav. 422 ; Hock v. Cooh, 2 De G. & Sm. 493 ;
Onyon v. Washlowne, 14 Jur. 497.
Where the furniture of a house had been sold by the receiver, the landlord, not
having distrained for rent due, was held to have no priority over other creditors
in the proceeds of the sale : Sutton v. Bees, 9 Jur. (N.S.) 456.
The Peoperty of ■which Eeceivkr may be appointed.
A receiver may be appointed of the rents aud profits of real estate, and also of
all personal estate which is capable of being reduced into possession : Dan. 5th ed,
1577 ; Kei-r on Receivers, 87-92.
And in favour of equitable creditors the Court will appoint a receiver of all
property against which a legal creditor might obtain execution : Davis v. Duke of
Marlborough, 2 Sw. 132, cited in Dan. 5th ed, 1577.
A receiver may be appointed of heir-looms : Earl of Shaftesbury v. Duke of
Marlborough, Seton, 1025 ; Order, p. 338 ; of railways, Russell v. East Anglian
By. Co., 3 Mac. & G. 104 ; Furness v. Caterham, By. Co., 25 Beav, 614 ; 4 Jur,
(N.S.) 1213 ; Re Stafford and Uttoxeter By. Co., W, N, (1868) 113; Gardner
v. London, Chatham, and Dover By. Co. (V.-C. S.) ; Order, p. 339 ; of canals,
Fripp V. Chard By. Co., 11 Hare, 241; 17 Jur. 887; Potts v. WarwicJe Canal
Co., Kay, 142, 143 ; Bophins v. Worcester and Birmingham Canal Co., L. R.
6 Eq. 437 ; Order, p. 339 ; of docks, Ames v. Trustees of Birkenhead Docks, 20
Beav. 332 ; Order, p. 340 , Postlethwaite v. Maryport Barbour Trustees, W. N.
(1869) 37 ; of turnpikes, Knapp v. Williams, 4 Ves. 430 ; Dumville v. Ash-
brooke, 3 Russ. 982 ; Lord Crewe v. Edleston, 1 De G. & J. 93 ; of markets De
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RECEIVER. 345
Winton V. Mayor of Brecon, 26 Beav. 533 ,• Order, p. 339 ; of a pension, Noad
V. Backhouse, 2 Y. & C. 529 ; Order, p. 340 ; Carew v. Cooper, 4 Giff. 619 ; but
see Lloyd v. Cheetham, 3 Giff. 171 ; Davis v. Duke of Marlborough, 1 Sw. 74,
84 ; S. C. 2 Sw. 108 ; of a canonry, Qrenfell v. Dean of Windsor, 2 Beav.
544.
A receiver and manager may be appointed of property abroad. And in some
of such cases be has been appointed receiver and manager with authority to ap-
point an agent abroad, and in others, he has been appointed receiver or manager,
with directions to consign to some person resident in England : v. Lind-
say, 15 Ves. 91 ; Cockbum v. Raphael, 2 S. & S. 453 ; Rutherford v. WUkinson,
Seton, 1036.
The word " receiver " includes consignee and manager : Prel. Ord, 10, rule 7.
The person who has recovered judgment in an action on a contract entered into
after the passing of the Companies Act, 1867 (30 & 31 Vict. c. 127), or in an
action not on a contract commenced after the passing of that Act, may obtain the
appointment of a receiver, and, if necessary, of a manager of the undertaking : 30
& 31 Vict. c. 127, s. 4.
But a manager will not be appointed in a suit by a debenture-holder : Oar-
diner V. Chatham and Dover Ry. Co., L. R. 2 Ch. 201 ; Bowen v. Brecon Ry.
Co., L. R 3 Eq. 541, 545.
Every order appointing a receiver under the last-mentioned Act is to direct
such accounts and inquiries as the Court may think fit for ascertaining the debts
of the company, and the rights and priorities of the persons interested in the
moneys to come to the hands of such receiver or manager : Cons. Ord. 1868,
rule 32.
Mortgaged Property.
The Court will on motion appoint a receiver for an equitable creditor, or a
person having an equitable estate, without prejudice to persons who have prior
estates ; in this sense without prejudice to persons having prior legal estates, that
it will not prevent their proceeding to obtain possession if they think proper :
Marlborough v. Davis, 2 Sw. 137, per Lord Eldon.
And in order that prior equities may not he disturbed, the Court directs in-
quiries to determine priorities among equitable incumbrancers : Ibid.
Where a receiver has been appointed of a moi-tgaged estate, the mortgagee must
obtain the leave of the Court to bring an ejectment : Bryan v. Cormick, 1 Cox,
422; Anon., 6 Ves. 287 ; 9 Ves. 335.
The Court will not allow a prior incumbrancer to object to the appointment of
a receiver by anything short of a personal assertion of his legal right and taking
possession : Silver v. Bishop of Norwich, 3 Sw. 112, n., per Lord Cottenham.
The Court will grant a receiver at the instance of a second incumbrancer in all
cases in which the first incumbrancer is not in possession of the property ; and
the circumstance of the party creating the incumbrance being abroad, and re-
fusing to appear to the suit, will not deprive the second incumbrancer of his right
to a receiver : Dan. 1565 : Tanfield v. Irvine, 2 Russ. 149 ; Coward v. Chadwick,
2 Russ. 150, n. ; Browne v. Blount, 2 Russ. & My. 83.
The mortgagee of an undivided share may, in a suit for foreclosure and partition,
obtain the appointment of a receiver of his undivided share : FcUl v. Mkins,
9 W. E. 861 ; Morgan, 499.
Where any principal money is secm-ed or charged by deed on any heredita-
ments of any tenure, or on any interest therein, the person to whom such money
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346 RECEIVBE.
shall for the time being be payable, his executors, administrators, or assigns, shall
at any time after the expiration of one year from the time when the principal money
shall have become payable, or after any interest shall have been in arrear for six
months, or after aay omission to pay a premium on any insurance, &c., have the
power (inter alia) " to appoint or obtain the appointment of a receiver of the
rents and profits of the whole or any part of the property " : 23 & 24 Vict. c. 145,
s. 11.
Any person entitled to such receiver may appoint any one named in the deed
of charge for that purpose, or if no person named, then may by writing delivered
to any one entitled subject to the charge, or affixed on some conspicuous part of
the property, require him to appoint a receiver, and if no such appointment be
made within ten days after requisition, then may in writing appoint any person
he may think fit: 23 & 24 Vict. c. 145, s. 17.
Every receiver appointed under the Act is to be deemed to be agent of the
person entitled to the property subject to the charge, who is to be solely responsi-
ble for his acts or defaults, imless otherwise provided for in the charge : 23 & 24
Vict. c. 145, s. 18 ; see Jones v. Smith, 1 Hare, 43, 72.
Every receiver appointed under the Act has power " to demand and recover
and give effectual receipts for all the rents, issues, and profits of the property of
which he is appointed receiver by action, suit, or distress, or otherwise," &c. :
23 & 24 Vict. c. 145, s. 19.
" Every receiver appointed as aforesaid may be removed by the like authority,
or on the like requisition, as before provided with respect to the original appoint-
ment of a receiver, and new receivers may be appointed from time to time " : 23
& 24 Vict. c. 145, s. 20.
Every receiver appointed under the Act is to pay and apply all the money re-
ceived in the first place in discharge of all taxes, rates, and assessments, and in
payment of his commission, and of the premiums or insurances, if any, and in the
next place, in payment of interest due in respect of any piincipal money, and
subject thereto is to pay the residue to the person entitled : sect. 22.
Directions by the Court to the EECEiyEs.
To ddstram.
Let — the receiver of the rents and profits of — , be at liberty to
distrain upon the goods and chattels of the several tenants named in
the affidavit of — , for the several amounts of rent due and owing
from the said tenants, and Let such distraints be made in the name
of — , in whom the legal estate in the said — is vested : Gee v.
Atherton, Seton, 1013.
Receiver to give Sheriff Statement of Property claimed — Sheriff to give up
Let p., the receiver appointed in this cause, within seven days after
notice hereof, deliver to the sheriff of S. a statement in writing speci-
fying what part of the goods and chattels now in possession of the
said sheriff the said receiver claims as the property of the testator
K. Let the sheriff withdraw from the possession of such parts of the
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RECEIVER. 347
said goods and chattels as the receiver shall so specify. WiUmer v.
Kidd (V.-C. W.), July 14, 1853 ; Seton, 1002.
Seceiver to bring Ejectment or defend Actions.
Let — the receiver, &o., he at liherty to bring an action of eject-
ment against — , in the Coiirt of — , for the recovery of the premises
situate, &c. [or, be at liberty to defend the action brought against
him by — , in the Court of — .] And the said receiver is to be
allowed his costs and expenses of bringing the said action of eject-
ment [or, of defending the said action] in passing his accounts.
Beeeiver to sanction Expenditure.
Let — the receiver, &c., be at liberty to expend a sum not exceed-
ing the sum of £ — in executing the works [or, repairs] specified in
the affidavit of — , and the said receiver is to be allowed the sum
which shall be expended under the direction hereinbefore contained
in passing his accounts.
Similar Order — Certificate.
Let the works and repairs on the land and premises situate, &c.,
mentioned in the affidavit of — , be done and executed according to
the specifications and estimates contained in the exhibits K. and L. as
in the said affidavit referred to, and under the direction and superin-
tendence of — , the receiver. Let, upon the said works and repairs
being certified to have been properly executed according to the said
several specifications and estimates, the said receiver be at liberty to
pay the amount expended upon such works and repairs under the
directions hereinbefore contained to the person or persons entitled to
receive the same. And the said receiver is to be allowed such sums on
passing his accounts.
'Receiver — To talce Legal Proceedings — Bankrupt's Estate.
Let G. S., the receiver appointed in this cause, be at liberty to
commence, continue, and carry on proceedings at law against the
several persons named in the schedule hereto, to recover from them
the amounts due from them to the partnership estate which are
respectively set opposite their names in the second column of the said
schedule. Let the said receiver be at liberty, at the expense of the
said estate, to convene a meeting of all the creditors of the said estate
for the purpose of laying before them a. statement of the partnership
estate and assets, and of the proceedings in this suit. Hodgson v,
Davidson, schedule (V.-C. B), Feb. 21, 1871.
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348 EECEJVER.
After tlie tenants have attorned to the receiver he may distrain in his own
name for rent accrued during such tenancy without an order: Dan. 5th ed.
1596, and cases cited.
But a distress for rent accrued before that time must be made in the name of
the person who has the legal right to the rent. : Ibid. ; Woodfall, 51, 393.
And if the rent be in arrear for more than a year an order is necessary : Bran-
don V. Brandon, 5 Madd. 473. But a minute of the directions given by the
chief clerk is sometimes made without an order being drawn.
A receiver is not permitted to expend any considerable sum of money in repairs
or rebuilding without the sanction of the Court: Att.-Qen. v Vigor, 11 Ves.
563 ; Thornhill v. Thornhill, 14 Sim. 600 ; see also Tempest v. Ord, 2 Mer. 55.
Meceiver to iring in Acccnmt.
Let — , the receiver appointed, &o., and pursuant to the order dated,
&c., on or before the — day of — [or, within — days after service of
this order] leave in the chambers of the judge his- account as such
receiver. [If ordered : Let the said — , receiver, pay the costs of this
application, to be taxed, &c.J
Recognizance to he pat in Suit.
Upon the' application, &c., and upon hearing the solicitor for [or,
upon reading an affidavit of service, &o., on] — , the receiver, and — ,
the sureties, the said — be at liberty to put in suit the recog-
nizance dated, &c., and entered into by the said — , the receiver,
together with the said — and — as his sureties.
Where a receiver who had been discharged did not pay in his balance by the
appointed time, he was ordered to pay in the same, and also the amount allowed
for his salary with interest : Harrison v. Boydell, 6 Sim. 211.
In a similar case the interest charged was not upon each sum from the time it
was received, but as an executor would be charged : Potts v. Leighton, 15 Ves.
273.
Seceiver discharged — Payment — Secognizanee vacated.
Let — , the receiver appointed by the order dated, &o., be discharged.
Let him pass his final account of receipts and payments, and pay the
balance which shall be certified to be due from him into Court to
the credit, &o. [or, to A. B.]. And upon such payment being made.
Let the recognizance dated, &c., be discharged.
Payment hy Executor of deceased Seceiver — Secognizanee vacated.
Let — , the executor or administrator of — , the receiver, be at
liberty to carry in and pass the account of receipts and payments of
the said — as such receiver from the foot of his last account to the
time of his decease ; and pay the balance which shall be certified to
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EECEIVEE. 349
be due from the said — into the bank, &o. [m; to A. B.]. And upon
such payment being made, Let the recognizance dated, &c., be vacated.
Discharge of Eeceiver.
The application to discharge the receiver and vacate his recognizance is some-
times made upon motion in Court, or by summons in chamhers. The direction
may also he given in the decree or order on further consideration.
The receiver is entitled to the costs of his application to he discharged : Eichard-
son V. Ward, 6 Madd. 266.
The receiver will not he discharged upon the ex parte application of the person
at whose instance he was appointed : Largan v. Sowen, 1 Sch. & Lef. 296 ;
Davis V. Duke of MartborougJi, 2 Sw. 108 ; cited in Dan. 5th ed. 1612.
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CHAPTER XXIV.
MORTGAGES.
Foreclosure.
Common Decree — Mortgagor in Possession.
[If security has been disputed : Declare that the indenture dated, &c.,
in the pleadings, mentioned is a good and valid security.]
Let an account be taken of what is due to the Pit for principal and
interest on his mortgage in the pleadings mentioned, and for his costs
of this action (such costs to be taxed by the taxing master). Let, upon
the Deft paying to the Pit what shall be certified to be due to him for
principal, interest, and costs as aforesaid within six calendar months
after the date of the chief clerk's certificate, at such time and place
as shall be thereby appointed, the Pit re-convey [re-assign, or re-
surrender] the hereditaments and premises comprised in the said
indenture, free and clear of and from all incumbrances effected by
him or any person or persons claiming by, from, or under him. [If
Pit he the representative of the original mortgagee, add, or by those under
whom he claims], and deliver up upon oath all deeds and wi'itings in
his custody or power relating thereto to the Deft, or to whom ho shall
appoint. But in default of the Deft paying to the Pit what shall be
so certified to be due to him for such principal, interest, and costs as
aforesaid by the time aforesaid, the Deft is from thenceforth to stand
absolutely debarred and foreclosed of and from all right, title, interest,
and equity of redemption of, in, and to the said mortgaged premises. —
Liberty to apply.
Foreclosure — Mortgagor in possession — Debt admitted.
The Deft by his counsel admitting that the sum of £ — is now due
and owing from him to the Pit for principal on his several mortgages
in the pleadings mentioned, and the sum of £ — for interest thereon
up to this day, making together the sum of £ — , Let, upon the Deft
paying to the Pit the said sum of £ — , together with the further sum
of £ — for subsequent interest on the said principal sum from this day
up to the — day of — , being six calendar months from this time,
making together the sum of £ — ; on the said — day of — , at the
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MORTQAGES. 351
Chapel of the EoUs, Chancery Lane, London, between the hours of
twelve and one in the forenoon, the Pit re-convey [re-surrender, or
re-assign, &c.j, and deliver up, &c. But in default, &o., the Deft is
from thenceforth to stand absolutely debarred and foreclosed, &c.
Foreclosure — Mortgagee in possession.
Let the following accounts be taken, that is to say : —
1. An account of what is due to the Pit for principal and interest
on his mortgage in the pleadings mentioned, and for his costs of this
action (to be taxed by the taxing master). .
2. An account of the rents and profits of the hereditaments com-
prised in the said mortgage received by the Pits, or either of them, or
by any other person or persons, by the order or for the use of the Pits,
or either of them, or which without the wilful default of the Pits or
either of them might have been so received.
Let what shall appear to be due on such account of rents and
profits be deducted from what shall appear to be due to the Pits for
principal, interest, and costs as aforesaid. And upon the Deft paying
to the Pits what shall be certified to remain due to them for principal,
interest, and costs as aforesaid, after such deduction, within six
calendar months, &c., at such time and place, &c., Let the Pit re-
convey [re-surrender, or re-assign, &c.], &c., and deliver up, &c. But
in default, &c., the Deft is from thenceforth to stand absolutely
debarred and foreclosed, &c.
Foreclosure — Mortgagee in possession — Account of Bents and Profits —
Mepairs and lasting Improvements.
Let the following accounts be taken : —
1. An account of what is due to the Pits for principal and interest
on the mortgage in the pleadings mentioned, and for their costs of
this action (to be taxed by the taxing master).
2. An account of all sums of money laid out by the Pits in
necessary repairs and lasting improvements in the hereditaments com-
( prised in the said mortgage. Let interest be computed on the sum
which shall appear to have been so laid put in lasting improvements
after the same rate of interest as the said mortgage carries ; and Let
what shall appear due on the account numbered 2 be added to what
shall appear due to the Pits on the account numbered 1.
3. An account of the rents and profits of the mortgaged heredita-
ments received by the Pits or either of them, or by any other person
or persons, by the order or for the use of the Pits or any [or either] of
them, or which without the wilful default of the Pits or any [or either]
of them might have been so received.
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352 MOETGAGES.
Let what shall appear due on the last-mentioned account be de-
ducted from what shall appear due to the Pits on the accounts num-
bered 1 and 2. And, upon the Defts or either of them paying to the
Pits what upon the balance of the said accounts shall be certified to
be due to them, within six calendar months, &c., Let the Pits re-convey,
[re-surrender, or re-assign], &c., and deliver up, &o. But in default,
&c., the Defts are from thenceforth to stand absolutely debarred and
foreclosed, &c.
Successive Foreclosures — First Mortgagees v. Second and Mortgagor.
1 . Let an account be taken of what is due to the Pits for principal
and interest on their mortgage in the pleadings mentioned, and for their
costs of this action (such costs to be taxed, &c.). Let, upon the Deft K.
(second mortgagee) paying to the Pits what shall be certified to be
due within six calendar months after, &o., at such time, &c., the
Pits re-convey the mortgaged hereditaments free and clear, &c., and
deliver all deeds and writings, &c. But in default of the Deft K.
paying to the Pits what shall be certified to be due to them for such
principal, interest, and costs as aforesaid by the time aforesaid, the
Deft K. is from thenceforth to stand absolutely debarred and foreclosed,
&c. And in case of such foreclosure. Let the Pits' subsequent iuterest
be computed ; and Let their subsequent costs be taxed by the taxing
master. And upon the Defts W. F. and J. F. (mortgagors) paying to
the Pits what shall be certified to be due to them for principal,
interest, subsequent interest, and costs as~ aforesaid within three
calendar months after the Chief Clerk shall have made his subsequent
certificate, at such time and place, &c., Let the Pits re-convey the said
mortgaged premises free and clear, &c., and deliver all deeds, &c., to
the Defts W. F. and J. F., or as they shall appoint. And in default of
the said Defts W. F. and J. F. paying to the Pits what shall be cer-
tified to be due to them as aforesaid by the time aforesaid, the said
Defts W. F. and J. F. are from thenceforth to stand absolutely debarred
and foreclosed, Ac.
But in case the Deft K. [second mortgagee] shall redeem the Pits
the said mortgaged hereditaments. Let subsequent interest be computed
on what the Deft K. shall have so paid to the Pits, and Let an account
be taken of what is due to the Deft K. for principal and interest on his
said mortgage, and for his costs of this action, to be taxed, &c. And upon
the Defts W. F. and J. F. [mortgagors] paying to the Deft K. what he
shall have so paid to the Pits, together with what shall be certified to
be due to the Deft K. for principal aid interest and subsequent interest
on his said mortgage and for his costs as aforesaid within three
calendar months, &c., at such time and place, &c.. Let the Deft K. fe-
convey, &c., and deliver all deeds, &c., to the said W. F. and J. F.
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MORTGAGES. 353
[mortgagors], or as they shall appoint. But in default of the Defts
W. F. and J. F. paying to the Deft K. what shall be certified to be
due by the time aforesaid, the said Defts W. F. and J. F. are from
thenceforth to stand absolutely debarred and foreclosed, &c. — Liberty
to apply.
Successive Foreclosures — First Mortgagee y. Second and Third Mortgagees
and Mortgagor.
Let an account be taken of what is due to the Pits W. and B. [first
mortgagees] for principal and interest under and by virtue of the in-
denture, dated, &c., in the bill mentioned, and for their costs of this
suit, to be taxed, &c. And upon the Defts H. and E. [second mort-
gagees] paying to the Pits what shall be certified to be due within six
calendar months, &c., at such time and place, &c., Let the Pits re-
convey, &c., and deliver up all deeds, &c. In default Let the said
Defts stand foreclosed, &c. And in case of such foreclosure Let the
Pits' subsequent interest be computed, and the subsequent costs of the
Pits of this suit be taxed. And upon the Deft L. [the third mort-
gagee] paying to the Pits what shall be certified to be the total amount
due for principal, interest, and costs as aforesaid, within three calendar
months, &c., at such time and place, &c.. Let the Pits re-convey, &c.,
and deliver up, &c. But in default, &c., Let the said Deft stand fore-
closed, &c. And in case of such foreclosure Let the Pits' subsequent
interest be computed, and the subsequent costs of the Pits of this suit
be taxed, &c. And upon the Deft K. [the mortgagor] paying within
three calendar months what shall be certified to be the total amount
due for principal, interest, and costs, as aforesaid, at such time and
place, &c., Let the Pits re-convey, &c., and deliver up, &c. And in
default, &c.. Let the said Deft K. be foreclosed, &c.
But in case the Defts H. and E. [second mortgagees] shall redeem the
said hereditaments and premises, Let subsequent interest be computed
on what the said Defts shall pay to the Pits, and Let an account be
taken of what is due to the said Defts for principal and interest on
their mortgage security, dated, &c., and for their costs of this suit,
to be taxed by the taxing master. And upon the Deft L. [third
mortgagee] paying to the said Defts H. and E. what they shall have so
paid to the Pits, together with what shall be certified to be due to the
said Defts H. and E. for principal and interest and subsequent interest
on their mortgage security, dated, &c , and for their costs as aforesaid,
within three calendar months, at such time and place, &c., Let the said
Defts H. and E. re-convey, &c., and deliver up, &g. And in default, &c,,
Let the said Deft L. stand foreclosed, &c. And in case of such fore-
closure, Let subsequent interest be computed on what shall be certi-
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354 MORTGAGES.
fied to be due to the said H. and K., and let their subsequent costs be
taxed. And upon the Deft K. paying to the Defts H. and E. what they
shall have so paid to the Pits, together with what shall be certified to
be due to the said Defts H. and E. for principal and interest and sub-
sequent interest, and for their costs as aforesaid within three calendar
months, &o., at such time and place, &c., Let the said Defts H. and E.
re-convey, &c., and, deliver up, &c. But in default, &c.. Let the said
Deft K. stand foreclosed, &c.
But in case the Deft L. [third mortgagee] shall redeem the Pits or
the Defts H. and E., Let subsequent interest be computed on what
the said Deft L. shall pay to the said Pits or the said Defts H. and E.,
and Let the following farther account be taken : An account of what
is due to the said Deft L. for principal and interest on his mort-
gage security dated — , and for costs of suit, to be taxed, &o. And
upon the Deft K. [mortgagor] paying to the said Deft L. what he
shall have paid to the Pits, or to the said Defts H. and E., together
with what shall be certified to be due to him for principal and interest
and subsequent interest, and for costs as aforesaid, within three
calendar months, &c., at such time and place, &c.. Let the said Deft L.
re-convey, &c., and deliver up, &c. In default, &c.. Let Deft K. stand
foreclosed, &c. Wagstaff y. Kemp (M.K.), Kov. 11, 1873.
Successive Foreclosures — Third Mortgagees v. Assignees of First Mortgagee
and Owners of Equity of Bedemption and Representatives of Second
Mortgagee.
Let an account be taken of what is due to the Deft W. B. [assignee
of first mortgagee] for principal and interest in respect of the several
mortgage surrenders in the Pit's bill mentioned, and for his costs pro-
perly incurred in consequence thereof, and for his costs of suit to be
taxed, &c. An account of the rents and profits of the mortgaged
premises received by the Deft W. B., or by W. W., under whom the
said Deft W. B. claims, or by any other person or persons, by his or
their order, or for his or their use, or which without his or their wilful
neglect or default might have been received. Let what shall be owing
on such last-mentioned accounts of rents and profits be deducted from
what shall be found due to the Deft W. B. for principal, interest, and
costs as aforesaid.
Let upon the Defts S. L. and E. his wife [personal representa-
tives of second mortgagee] paying to the Deft W. B. [assignee of first
mortgagee] the balance which shall be remaining due to him for such
principal, interest, and costs as aforesaid after such deduction as afore-
said, within six calendar months, &c., at such time and place, &c., the
Deft W. B. surrender and re-assign the mortgaged premises comprised
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MORTGAGES. 355
in the said mortgage surrenders free and clear, &o., and deliver up on
oath all deeds, &o. But in default of the said Defts S. L. and E. his
wife paying to the said Defendant W. B. such balance as aforesaid, by
the time aforesaid, Let them stand absolutely debarred and foreclosed,
&o.
And in case of such foreclosure, Let the subsequent interest of the
Deft W. B. be computed, and his subsequent costs of this suit be taxed.
And upon the Pits T. T. and M. T. [third mortgagees] paying the
said Deft W. B. what shall be certified to be due to him for principal,
interest, and costs as aforesaid, after such deduction as aforesaid, within
three calendar months, &c., at such time and place, &c.. Let the Deft
W. B. surrender and re-assign the said mortgage premises free and
clear, &c., and deliver upon oath, &c. But in default of the said T. T.
and M. T. paying to the Deft W. B. what shall be found due to him as
aforesaid, by the time aforesaid. Let them stand absolutely debarred
and foreclosed, &c.
And in case of such foreclosure, Let the subsequent interest ef the
Deft W. B. be computed, and his subsequent costs of this suit be
taxed. And upon the Defts J. S. C. and Jane his wife [owners of
equity of redemption] paying to the Deft W. B. what shall be certi-
fied to be due for principal, interest, and costs as aforesaid, within
three calendar months, &c., at such time and place, &c.. Let the Deft
W. B. surrender and re-assign, &c., and deliver up, &c. But in default
of the said J. S. C. and Jane his wife paying to the Deft W. B. what
shall be certified to be due for principal, interest, and costs. Let the
said J. S. 0. and Jane his wife stand absolutely debarred and fore-
closed, &c.
But in case the Defts S. L. and E. his wife and M. G. [repre-
sentatives of second mortgagees] shall redeem the said Deft W. B. as
aforesaid, by the time aforesaid. Let an account be taken of what is
due to the said S. L. and E. his wife, as the executors of T. M. deceased,
for principal and interest on his mortgage securities in the pleadings
mentioned, and for what the said S. L. and E. his wife shall so pay to
the Deft W. B. for principal, interest, and costs as aforesaid, and for
interest thereon, and for costs of suit (to be taxed by the taxing master).
And upon the Pits T. T. and M. T. [third mortgagees] paying to
the said S. L. and E. his wife what shall be found due to them for-
such principal, and interest, and costs as aforesaid, within three calendar
months, &c.. Let the said S. L. and E. his wife surrender and re-assisn
the said mortgaged premises, &c. But in default of the said T. T. and
M. T. paying, &c. And in case of such foreclosure Let the subse-
quent interest of the said Defts S. L. and E. his wife, and M. C, ou
their said mortgage, and on what they shall have paid to the said
Deft W. B., be computed, and Let their subsequent costs of this suit
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356 MORTGAGES.
be taxed. And upon the Defts J. S. C. and Jane his wife paying, &c.,
within three calendar months, &c.. Let the said Defts S. L. and E.
his wife surrender and re-assign, &c. But in default of the said J. S. C.
and Jane his wife paying, &o.
But in case the said Pits T. T. and M. T. [third mortgagees] shall
redeem the said Defts S. L. and E. his wife, Let an account be taken
of what is due to the said Pits T. T. and M. T. for principal and
interest on their mortgage securities, and for what the said Pits T. T.
and M. T. shall so pay to the said Defts S. L. and E. his wife for
principal, interest, and costs as aforesaid, and for interest thereon, and
for the Pits' costs of this suit and at Law, to be taxed, &c. And upon
the Defts J. S. C. and Jane his wife [owners of equity of redemption]
paying to the said T. T. and M. T. what shall be found due to them
for such principal, interest, and costs as aforesaid, after such deduc-
tions as aforesaid, within three n^onths, &o. Let the said T. T. and
M. T. surrender and re-assign, &c. But in default of the said Defts
J. S. C. and Jane his wife paying to the Pits T. T. and M. T. what
shall be remaining due to them for such principal, interest, and costs
as aforesaid, by the time aforesaid, the said Defts J. S. C. and Jane
his wife are from thenceforth to stand absolutely debarred and fore-
closed, &c. Thachwray v. Bell (L. C), Feb. 1, 1840.
Suit hy Mortgagee — Questions of Priority {not affecting Pit) raised between
Go-Defts — Bedemption hy Time stated.
Let an account be taken of what is due to the Pit under and by
virtue, &c. And upon the Defts ■ — , or any of them, paying to the
Pit what shall be certified to be due, &c., within six calendar months,
&c., at such time and place, &c.. Let the Pit execute all proper and
necessary deeds, &c., and deliver up upon oath all the title deeds, &o.,
to the said Defts, or to such one or more of them as shall so redeem
the Pit, or as he or they shall direct, such conveyances to be settled,
&o. And in case the said Defts, or any or either of them, shall so
redeem the Pit, the Defts or Deft so redeeming the Pit are or is to be
at liberty to apply to this Court as he or she may be advised, and on
such application it is not to be inciimbent on the Deft or Defts so
applying to give to the Pit notice thereof. But this order is to be
without prejudice to any question which may arise as to the rights or
interests of the said Defts as between themselves to or in the said
hereditaments and premises. And in default of the said Defts or
any or either of them so redeeming the Pit by the time aforesaid. Let
them stand absolutely debarred and foreclosed, &o. And this decree i§
also to be without prejudice to tbe rights of the Crown as regards the
leasehold premises comprised in the Pit's mortgage security. And in
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MORTGAGES. 357
case of such fureclosure aforesaid, the Pit is to be at liberty to hold the
said leasehold premises until the Crown shall think fit to redeem the
same, and to be at liberty to apply in chambers for a sale of the said
leaseholds. And this decree is to be also without prejudice to the
paramount titles set up by the Defts E. P. and S. P. as regards the
premises affected or alleged to be affected thereby. —Stay of proceed-
ings against some of the Defts.— Liberty to apply. Bartleit y. Bees,
L. E. 12 Eq. 395.
Changes in Interest of Mortgagor — Equity descended on co-Heirs — One an
Infant, the other Bankrupt.
Let an account be taken of what is due to the Pit for principal and
interest, &c., and for costs, &c., such costs to be taxed, &c.
Let, upon the Defts K. and S. paying to the Pit what shall be certi-
fied, &c., the Pit re-convey the one undivided moiety of the mortgaged
hereditaments to the Deft K., and the other undivided moiety to the
Deft S., free and clear, &c., and deliver up all deeds, &c. But in
default, &c., both Defts to be foreclosed. And in case the Defts shall
redeem the said premises, the undivided moiety thereof which shall
be conveyed to the Deft S. is to be for the benefit of the creditors of
B. in the pleadings named.
And this decree is to be binding on the infant Deft K., unless, &c.
Seton, 423.
Change in Interest of Mortgagor— Mortgagor seised of Estates 1, 2, 3,
and 4, subject to Legacy, Mortgages 1, 3, and 4 — Marriage Settlement
— Mortgages No. 2 — Becomes Bankrupt.
Let interest be calculated from the — day of — (the date of filing
the bill) on the legacy of £800 bequeathed by the will of — to B. —
Account of what is due to the several incumbrancers. — Let, on the Pit
{creditor's assignee of mortgagor] and Deft X. [tenant in tail under
the marriage settlement] paying to the Defts the incumbrancers
respectively what shall be certified, &c., the said Defts release and
convey the estates comprised in their several mortgages, according to
the respective interests of the several parties, free and cl6ar, &c., that
is to say : — ^As to the estate 2 (unsettled), to the Pit and the Deft X.,
or to such of them as shall so redeem the same, and as to estates 1, 3,
and 4 (settled), upon the trusts of the settlement dated, &c. (Delivery
of deeds, &c.) But in default of the Pit and X., or either of them,
redeeming the said mortgaged premises within the time aforesaid.
Let the Pit's bill be dismissed with costs, to be taxed, &c., and paid
by Pit. ChappeU v. Bees, as affirmed on appeal, 1 De 6. M. & G. 393.
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358 MORTGAGES.
Change in Interest of Mortgagee — Mortgage devised to Trustee— xA Deft
dowable — Apportionment of Mortgage-money.
An account of what is due on the lands comprised in the mort-
gage security dated, &c., to A., the testator, devised hy the will of the
said testator to the Pit B. in trust for the benefit of the other Pits.
Let, upon the Defts C. and D., or either of them, paying to the
Pit B. what shall be certified, &c., the Pit B. re-convey, &c., and
deliver all deeds, &c. But in default the Defts C. and D. are to stand
absolutely foreclosed, &o.
But such foreclosure is to be without prejudice to the dower of the
Deft E. in respect of the said lands, and subject to the declaration
and further directions hereinafter mentioned.
And in case the Defts C. and D., or either of them, shall redeem as
aforesaid, let an account be taken of what is due to the Pits severally,
other than the Pit B., for their respective proportions of the principal
money and interest due on the said mortgage. And Let the proportion
thereof which shall be found due to the said Pits respectively be paid
to them accordingly.
But in case of such foreclosure declare that the Pit B. is to be
deemed a trustee of the said mortgaged hereditaments for the
benefit of the other Pits, according to their respective proportions of
the said mortgage money. — ^Liberty to apply. Westmore v. Emherley,
Seton, 424.
Foreclosure of one-fourth of a Mortgaged Property — The remaining three-
fourths having been purchased by and conveyed to Mortgagee.
J. M. and D. having released the equity of three-fourth parts of the
mortgaged estate to the Pit, and having conveyed to him the fee
simple and inheritance of ihree-fourths of the said estate, and the
Pit by his counsel declaring that he is content to accept such release
and conveyance in full satisfaction of three-fourths of the money due
on the said mortgage, Let an account be taken of what is due to the
Pit for principal and interest on the said mortgage, as if the deed
dated, &c. [releasing the equity of redemption in the three-fourths]
had not been executed.
Tax the Pit his costs of suit. — Account of the rents received by the
Pit, amount to be deducted. — Let what shall be taxed for the Pit's
costs be added to one-fourth part of what shall be certified would
have been due for principal and interest on the said mortgage if the
said deed had not been executed.
Let, upon the Deft paying to the Pit one-fourth part of what would
have been due for principal and interest on the said mortgage and the
said costs within ^ix calendar months, &c., the Pit re-convey one-fourth
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M0ETGAGE8. 359
part of the said mortgaged premises, &o. But in default of the Deft
paying, &c., one-fourth part, &o., the Deft is from thenceforth to
stand absolutely debarred and foreclosed, &o. — ^Liberty to apply.
Newcomle v. Bowne (M. E.), Feb. 15, 1777 ; Seton, 425.
Foreclomre of several Estates — Of one of which Pit is Purchaser — Specific
Performance of Agreement for Purchase.
Declare that the agreement for the sale of W. ought to be specific-
ally performed and carried into execution, and decree the same
accordingly. Let Deft K., as devisee and legal personal representative
of the testator [mortgagor and vendor] convey W. to the Pit, or as
she shall direct. Let an account be taken of what is due to the Pit
for principal and interest, and for costs, &c. Upon payment by Deft B.
[second mortgagee of estates X., T., and Z.], Let the Pit assign the
premises comprised in her said mortgage other than W. free from incum-
brances, &c., and deliver up deeds, &o. In default, &o., B. to stand
foreclosed.
Like directions as to Deft L. [third mortgagee], and Deft K.
[representative of mortgagor].
In case B. shall redeem, an account of what is due, to him for prin-
cipal and interest and costs, &c., and upon payment by L. let B.
assign the premises comprised in his mortgage and in the mortgage to
the Pit other than W., free from incumbrances, &c., and deliver up
deeds, &o. In default foreclose L.
Like directions as to K.
If L. should redeem, account of what is due to him, and directions
for redemption by or foreclosure of K. — Liberty to apply. Sober v.
Kemp, 6 Hare, 160, note.
A. mortgages whole Estate to Pit B., and dies, leaving two co-Heirs — one of
whom mortgages Ms Moiety to Pit B.
1. An account of what is due to the Pit for principal and interest
on the mortgage dated, &c. [first mortgage], and for costs, &c.
Upon payment by the Defts [representing the two co-heirs of mort-
gagor], or either of them, of what is certified to be due on that mort-
gage within, &c., at such time and place, &o., the Pit to re-convey to
Deft P., at the expense of the said Deft, one undivided moiety of the
mortgaged hereditaments. But in default both Defts to be foreclosed.
Declare that in case of such redemption the other moiety of the
mortgaged hereditaments will remain in the hands of the Pit, subject
to redemption by the Deft L. on payment of what shall appear due on
the mortgage No. 2' made by S. And in case of such -redemption,
2. An account of what is due to the Pit for principal and interest
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360 MORTGAGES.
on second mortgage. On payment by Deft L. [representing co-heir S.]
Pit to convey. In default Deft L. to be foreclosed.
In case the Deft P. shall pay off what is due on mortgage No. 1,
Pit to re-convey the whole to Deft P., subject as to one moiety to
declaration, that Pit, as standing in the place of S., is entitled to
redeem one moiety on payment of a moiety of what shall be certified
to be due on first mortgage, with subsequent interest and costs. In
that case compute subsequent interest on a moiety of the money which
shall have been paid by Deft P., and tax his subsequent costs. Upon
Pit paying to the Deft P., &c., the Deft P. to convey one undivided
moiety, &c., to Pit. But in default Pit's bill as against Deft P. to
stand dismissed with costs.
In case Pit shall redeem Deft P. as to last-mentioned moiety, com-
pute subsequent interest on what Pit shall pay Deft P., and also on
what shall be certified to be due from Deft L. on mortgage made by
S., and tax Pit's subsequent costs.
Upon Deft L. paying to Pit what he shall have paid Deft P., with
subsequent interest and costs, and also what shall be certified to be
due for principal, interest, and costs on mortgage made by S., Pit to
re-convey last-mentioned moiety to Deft L. In default Deft L. to be
foreclosed. Beynolds v. Lowe (L. C), May 14, 1748; Seton, 426.
BIOETGAGES OF PERSONALTY.
Pure Personalty — Stock — Foreclosure.
Let an account be taken of what is due to the Pits for principal
and interest on their mortgage security in the pleadings mentioned
. and for costs of suit (such costs to be taxed by the' taxing master) :
And upon the Defts Jeans and Jenkins, or either of them, paying to
the Pits what shall be certified to be due within six months, &c., at
such time and place, &c., Let the Pits assign, &o. But in default,
&c., they are to stand absolutely debarred and foreclosed, &o. Wayne
V. Hanham, 16 Jur. 606.
Similar Order — Fund in Court — Foreclosure.
Let an account be taken, &c. And upon payment, &c., Let the Pit
assign, &c. But in default, &o., let the Deft stand absolutely de-
barred and foreclosed of, in, and to the £ — Bank 3 per cent. Annuities
standing to the credit of, &c., and of and in any dividends that may
accrue on the said Bank annuities.
Chattels — Fixtures — Foreclosure.
Deolaee that the Pits are entitled under their' mortgage deed of the
23rd August, 1854, in the bill mentioned, to the hereditaments, steam
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MORTGAGES. 361
engines, steam boilers, mill gear, millwright work, and machinery at
the date of the said deed or thereafter fixed to the said hereditaments,
and that such description comprehends all the articles mentioned in
and described in the 12th paragraph of the bill, except those num-
bered 122, 226, 567, 687, 708, 709, 710, and 717. Let it be referred
to the taxing master to tax the Pits their costs of this suit, includ-
ing the costs of the motion for an injunction so far as the same
have been occasioned by the dispute between the Pits and Defts, John
Frazer, Philip Thomson, and James Wigan, as to the articles com-
prised in the said security. Let the said Defts pay the same to the
Pits out of the funds in their hands as assignees.
And all the Defts, by their counsel, declining to redeem the Pits'
mortgage, let the said Defts from thenceforth stand absolutely de-
barred of and from all right, title, interest, and equity of redemption
of, in, and to the said mortgaged premises. Mather v. Fraser, 2 K. &
J. 536.
Chattels — Fixtures — Account.
Declare that all the articles of machinery and fixtures in the Pit's
bill mentioned which were attached to the freehold of the heredita-
ments and premises in the bill mentioned, were included in and
formed part of the Pit's mortgage security therein mentioned. And
that all the articles of machinery and fixtures in the pleadings men-
tioned, except the lots originally numbered 51, 56, 57, 58, and 88 in
the printed catalogue of sale were so fixed, and therefore form part of
the Pit's said security. Let an account be taken of any moneys
received by the Defts in respect of the said articles of machinery and
fixtures, in case the parties differ about the same.
Let the Defts B., H., and R., in case any such account be taken, pay
to the Pit W. C. within ten days from the date of the chief clerk's
certificate what shall be certified to have been so received in part
discharge of the principal and interest due to him on his said mort-
gage security. Let the Pit be at liberty to add his costs of this suit
to his mortgage debt (such costs to be taxed by the taxing master in
case the parties differ). — Liberty to apply. CuUwicJc v. Swindell, L. E.
3 Eq. 249.
Chattels— Fixtures — Costs — Set-off.
Declare that the Pits as mortgagees are entitled to the steam ham-
mer, lathe, engine, furnace, boiler, and other disputed articles, except
the cutters and bed plates belonging thereto, and the straightening
plates, and such part of the metal flooring as was added after the date
of the indenture of mortgage of the 18th February, 1857, to which ex-
cepted articles His Honour doth declare that the Defts are entitled.
Let the taxing master tax both parties their costs of the suit. Let
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362 MORTGAGES.
the Pits pay to the Defts such of the said costs as have been occasioned
by the Pits claiming the cutters and bed plates belonging thereto,
the straightening plates, and any portion of the metal flooring which
has been placed in the mill and premises subsequently to the said in-
denture of mortgage, and also so far as the bill seeks to rectify the
said indenture.— Defts to pay the remaining costs.— One set of costs
to be set off against the other.— Liberty to apply. Metropolitan Counties
Society v. Brown, 26 Beav. 454.
Chattels IrougU upon the mortgaged Estate after Mortgage.
Let the Deft henceforth stand absolutely debarred and foreclosed of
and from all right, interest, and equity of redemption of, in, and to the
leasehold land and property comprised in the indenture dated, &o., in
the pleadings mentioned. Let the Deft do all such acts and execute
all such deeds as may be necessary for vesting in the Pits, freed
and discharged from all equity and right of redemption, such of the
buildings, machinery, plant, utensils, materials, stock, and other
things on the said leasehold lands as may have been erected or made
thereon or brought upon the same or added thereto since the date of
the said indenture (such deeds to be settled by the judge in case
the parties differ). — Liberty to apply. Chisholm v. Ferguson (V.-C. "W.),
May 5, 1855 ; Seton, 406.
Pure Personalty — StocJc to he replaced — Foreclosure.
Let an account be taken of what is due to the Pits for principal
and interest in respect of the £ — Bank 3 per cent. Annuities in the
pleadings mentioned, and for his costs of suit, to be taxed, &c. Let,
upon the Defts transferring what shall be certified to be due to the
Pits in respect of the principal of the said sum of £ — , and paying to
them what shall be certified to be due to them for interest and costs
as aforesaid within six calendar months, &o., at such time, &c., the
Pits assign, &o., and deliver up, &o. But in default of the Defts
transferring to the Pits what shall be certified to be due in respect of
the principal of the said £ — Bank 3 per cent. Annuities, and paying
to them what shall be certified to be due for interest and costs by
the time aforesaid, the Defts are from thenceforth to stand absolutely
debarred and foreclosed, &o. — Liberty to apply. Piper v. Coie (L. C),
Nov. 14,- 1832, B. 425 ; Seton, 402.
Special Accounts and Inquiries.
Inquiry as to Incumbrances.
Let an inquiry be made what incumbrances affect the hereditaments
comprised in the mortgage security dated the — day of — , in the
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MOBTGAGES. 363
pleadings mentioned, and what is due for principal and interest thereon
respectiTely, and what are their respective priorities.
Similar Inquiry, and as to Parties interested.
Inquiry as to incnmhrances affecting the hereditaments com-
prised, &o., and what is due for principal and interest on such incum-
brances, and who are the parties now interested by assignment or
otherwise thereon, and what is the nature and amount of their
respective interests in such incumbrances respectively, and what are
their priorities. Seton, 397.
Occu/pation Bent.
It appearing that the Pit has been in the actual possession and
enjoyment of the hereditaments comprised in the mortgage security
dated, &c., from the — day of — , Let an annual value by way of
occupation-rent be set thereon as from such date, and be settled by
the judge in chambers ; and Let the Pit be charged therewith ; and
Let the same be deducted from what shall appear to be due for
principal, interest, and costs as aforesaid.
Inquiry as to Deterioration — Waste.
Let an inquiry be made whether the hereditaments comprised in
the mortgage security dated, &c., have been deteriorated since the
Pit has been in possession thereof by his wilful neglect in not re-
pairing the same, and to what extent ; Wragg v. Denham, 2 Y. & C.
117 ; or by improperly allowing the building at — , part of the mort-
gage security, to fall down ; Batchelor v. Middleton, 6 Hare, 85 ; or by
pulling down the buildings at, &c. Sandon v. Hooper, 6 Beav. 260.
Account as to Insurance Premiwms — Fines.
Let an account be taten of the sums paid by the Pit, or by any
person or persons on his behalf, for premiums on the policy of insurance
in the pleadings mentioned, with interest thereon at the same rate as
the mortgage carries. Let the amount which shall be certified to
have been so paid be added to the amount which shall be certified to
be due for principal, interest, and costs as aforesaid.
An account of the fines paid by the Pit, or any person or persons on
his behalf, in respect of fines on the renewal of leases of the said
mortgaged hereditaments, and for interest thereon at the same rate, &c.
Let the amount which shall be certified to have been so paid be
added, &c.
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364 MOETGAGES.
Inquiry as to Repairs and Lasting Improvements.
Let an account be taken of all sums laid out by the Pits in
necessary repairs and lasting improvements on the hereditaments
comprised in the said mortgage. Let interest be computed on the
sums which shall appear to have been so laid out in lasting improve-
iaents after the same rate of interest as the said' mortgage carries.
And Let what shall appear due on this account be added to what
shall appear due to Pits for principal, interest, and costs.
Account with, Rests.
Let annual rests be made in the account of the rents received by,
and on the occupation-rent accrued due from, the late Ann Tress in
her lifetime ; and also on the rents received by, and occupation
rent accrued due from, the said Defts, or any of them, since the death
of Ann Tress. Let interest be computed after the rate of £4 per
cent, per annum upon such rents and occupation-rents respectively.
Let the master distinguish and state what part of such interest
has become due from the said Defts, or any of them, since the death
of Ann Tress : Wilson v. Metcalf, 1 Euss. 530. Or, Take an account,
&c., and in taking the said account make annual rests of the clear
balance ; and compute interest on such respective balances at £5 per
cent. ; and in making such annual rests, except the first, include in
the balance then stated the interest of each preceding balance, so as
to charge the Deft with compound interest thereon. Cotham v. West
(M. E.), Nov. 15, 1836.
Sale instead of roEECLOsuRE.
Common Form.
Let an account be taken of what is due to the Pit for principal
and interest on his mortgage in the pleadings mentioned, and for
his costs of this action (such costs to be taxed by the taxing master).
Let, upon the Deft paying to the Pit what shall be certified to be
due to him for principal, interest, and costs as aforesaid, within six
calendar months after the date of the chief clerk's certificate, at such
time and place as shall be thereby appointed, the Pit re-convey
[re-surrender, or re-assign] the hereditaments comprised in the said
mortgage free and clear of and from all incumbrances effected by
him, or any persons claiming by, from, or under him [or by those
under whom the Pit claims], and deliver up on oath all deeds and
writings in his custody or power relating thereto to the Deft, or to
whom he shall appoint. But in default of the Deft paying to the
Pit what shall be so certified to be due for such principal, interest.
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MORTGAGES. 365
and costs as aforesaid, ty the time aforesaid, It is ordered tliat the
said mortgaged premises, or a competent part Ihereof, be sold with
the approbation of the judge. And let the money to arise by such
sale be applied in payment of what shall appear to be due to the
Pit for principal, interest, and costs as aforesaid, and be in the mean-
time paid into Court to the credit of the cause. Adjourn further
consideration, &c.
Sale at Bequest of Mortgagor — Deposit — In Defaidt of Deposit,
Foreclosure.
An account of what is due to the Pit on his mortgage in the plead-
ings mentioned, and for costs of this suit (including the costs of taking
the accounts, but excluding the costs of the sale if any hereby directed).
Let, on the Defts C. and L., &c., or any of them, paying the sum of
£ — into Court to the credit of this cause, within one week after the
date of the chief clerk's certificate of the result of the said account,
to be dealt with as the Court shall direct, the hereditaments comprised
in the Pit's mortgage be sold with the approbation of the judge.
Let the money to arise by such sale be paid into Court, to the credit
of this cause, B. v. C, to the end that the same may be applied in the
first place in satisfying what shall appear due to the Pit as aforesaid.
But in case the said sum of £ — shall not be so paid into Court by
the time aforesaid, or in case the same shall be so paid, but the said
mortgaged hereditaments (or a sufficient part thereof to raise what shall
appear to be due to the Pit as aforesaid) shall not have been sold
within four calendar months from the date of the said certificate,
Let, upon the Defts paying to the Pit what shall be certified to be due
for such principal, interest, and costs, or so much thereof as shall
remain due after the application of the money arising by such sale as
aforesaid, within six calendar months from the date of the said chief
clerk's certificate, at such time and place, &c., the Pit re-convey the
said mortgaged hereditaments (or such part thereof as may not have
been sold) free and clear, &c., and deliver up deeds, &c. But in
default, &c., Defts to be foreclosed. Liberty to apply as to the £ — ,
if paid in, and otherwise as advised. And in case of a sale adjourn
F. C, and of his costs attending any such sale, or not hereinbefore
provided for. Bellamy v. Cockle (V.-C. W.), 18 Jur. 465 ; Seton, 365.
Similar Order — Special Terms as to Beserve Biddings and Lots.
Let an account be taken of what is due, &c.. And the Pit having
admitted that be has been in receipt of the rents and profits of the
leasehold premises comprised in the indentures of mortgage, dated, &c.,
Let an account be taken of the rents and profits of the said leasehold
«
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366 MORTGAGES.
premises received by the Pit, or by any other person or persons by
his order or for his use, or which without his default might have been
received. Let what shall appear due on the last-mentioned account be
deducted from what may be due on the first-mentioned account, and
let the balance be certified. Let, upon the Defts or any of them pay-
ing the sum of £100 into Court to the credit, &c., to an account to be
entitled " Security Fund," within fourteen days from the date of the
certificate to be made on taking the said accounts, the leasehold
premises comprised in the said indenture of mortgage be sold with the
approbation of the judge. And in reference to such sale a reserved
bidding is to be fixed not less than the amount of such balance and the
estimated expenses of such sale, and such property is to be sold in one
lot, or if not sold in one lot then to be sold in two lots, the sale of the
first of which is to be contingent upon the second lot being also sold.
Let the money to arise by such sale be paid into Court to the credit of
this cause : L. v. L. 1^73, £40, and be applied in the first place in
satisfying what shall be certified to be the amount of such balance.
And in case any one or more of the said Defts shall deposit the said
sum of £100 directed to be deposited as aforesaid, Let as between the
said Defts, any or either of them respectively, the deposit so made be
without prejudice to the question by whom the same shall ultimately
be borne. But in case the said sum of £100 shall not be so paid into
Court as aforesaid by the time aforesaid, or in case such payment into
Court sh-all be so made, but' the said leasehold premises shall not have
been sold within four calendar months from the date of the said certi-
ficate, Let, upon the Defts or any of them paying to the Pit what shall
be certified to be the amount of the said balance within six calendar
nionths from the date of such certificate at such time and place, &c.,
the Pit re-assign the said premises free and clear, &c., and deliver up,
&c., to the Defts or Deft so redeeming or as he or they shall direct, but
without prejudice to any question which may arise as to the rights or
interests of the said Defts as between themselves in the said premises.
In default of payment Defts to be foreclosed. And in case of sale
further consideration adjourned. Loft v. Leigh (V.-C. H.), Nov. 17,
1874.
Form of Deckee.
The decree will be prefaced (in a redemption suit) by a declaration that the
right of redemption is still subsisting, or (in a suit for foreclosure or sale) that
the seourity is valid, where those matters have been in dispute: Eolmer v.
Turner, 7 Hare, 369, note ; Faulkner v. Daniel, 3 Hare, 199 ; Caslon v. Forhes,
8 Beav. 526 ; cited in Fisher, vol. ii., p. 987.
Though the mortgagee submit to depart from the common form of the decree
in one particular, as if the decree direct an account and then reserve further
directions, instead of the usual order for payment or foreclosure, yet he retains his
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MORTGAGES. 367
right to have the further decree made in the usual form : Fisher, vol. ii., p. 979 ;
Dunstan v. Patterson, 2 Ph. 341 ; 1 De 6. M. & G. 242.
The mortgagee is entitled to an immediate account of his principal, interest,
and costs, and to have a day fixed for payment or foreclosure : Pearse v. Hevdtt,
7 Sim. 471.
The production of the security is generally ^n'ma/acie evidence of the existence
of the debt : Piddoch v. Brown, 3 P. Wms. 289.
But where there are manifest signs of fraud there must be proof of actual
payment. S. C.
Where there are several mortgagees, and the first is also part owner of the
equity of redemption, the decree directs that upon payment to the first mortgagee
of all that is due to him by the second, the former shall convey the whole estate,
subject to his right to redeem the part in the equity of redemption whereof he is
interested. In default of payment the second mortgagee is foreclosed in the usual
manner : Fisher, vol. ii., p. 981.
Where a puisne mortgagee of estates, distinct portions of which have been pre-
viously mortgaged to several persons, seeks redemption, and to foreclose the mort-
gagor, he is entitled to a decree providing that he may redeem both or either of
the estates. If he redeem both, he may foreclose the mortgagor unless he also
redeem both ; if he redeem but one, the mortgagor must redeem that one or be
foreclosed ; and as to that which the pit does not redeem his bill will be dismissed :
Fisher, vol. ii., p. 982 ; Pelly v. Wathen, 7 Hare, 371.
Where questions as to priorities not affecting the pit are raised between co-
defts, the Court will fix a day certain for all to redeem or be foreclosed, without
prejudice to the rights of the several defts inter se : Bartlett v. Rees, L. E. 12 Eq.
395 ; Order, p. 356 ; Edwards v. Martin, 7 W. E. 30.
Where part of the mortgagor's interest is vested in the Crown, the Coiirt will
not decree foreclosure in respect thereof, but will give the pit liberty to apply in
Chambers for a sale : Hancock v. Att.-Oeneral, 33 L. J. (Ch.) 661 ; Bartlett
V. Bees, L. E. 12 Eq. 395.
FORECLOSUEB — SaLE.
The mortgagee may commence his suit for foreclosure or sale of the mortgaged
estate without taking possession : 5 Ves. 106.
A power of sale in a mortgage deed does not affect the right of foreclosure :
Slade V. Bigg, 3 Hare, 35 ; Wayne v. Eanham, 9 Hare, 62.
A person interested in part only of a sum due on mortgage cannot sue for
foreclosure of a corresponding part of the estate : Palmer v. Earl of Carlisle,
1 S. & S. 423.
Where two mortgagees take distinct shares in the mortgage money the mort-
gagee filing a bill for foreclosure must make the other mortgagee a deft : Daven-
port V. James, 7 Hare, 249 ; 12 Jur. 827.
A conveyance of an estate to pit in trust that the same should stand charged
with a sum of money and interest, and subject thereto in trust for a person
therein named, with a power of sale by A. on default in payment, gives no right
of foreclosure : Sampson v. Pattison, 1 Hare, 533.
Where the security for the advance is simply an assignment in trust for sale
and not a mortgage, the Court will not foreclose the equity of redemption : Jen-
kin V. Row, 5 De G. & Sm. 107.
In such cases the Court will merely aid in effecting the sale : S. C.
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368 MOETGAGES.
" The Court may, in any suit for the foreclosure of the equity of redemption
in any mortgaged property, upon the request of the mortgagee or of any subse-
quent incumbrancer, or of the mortgagor, or any person claiming under them
respectively, direct a sale of such property, instead of a foreclosure of such
equity of redemption, on such terms as the Court may think fit to direct, and, if
the Court shall so think fit, without previously determining the priorities of incum-
brancers, or giving the usual or any time to redeem ; provided that if such request
shall be made by any such subsequent incumbrancer, or by the mortgagor, or by
any person claiming under them respectively, the Court shall not direct any such
sale without the consent of the mortgagee, or the persons claiming under him,
unless the party making such request shall deposit in Court a reasonable sum of
money, to be fixed by the Court, for the purpose of securing the performance of
such terms as the Court may think fit to impose on the party making such
request." (15 & 16 Vict. c. 86, s. 48.)
The mortgagees may, under this section, institute a suit for an account of what
is due to them and for a sale, although the mortgage contains a power of sale and a
foreclosure is not prayed for by the bill : Button v. Sealey, 6 W. E. 350.
But where a sale would be clearly of injury to the mortgagor or other parties
interested, the Court will exercise a discretion, and give the common decree for
foreclosure and redemption : Hv/rst v. Hurst, 16 Beav. 375 ; Oator v. Reeves, 16
Jur. 1004 ; Roberts v. Price, 1 W. E. 303.
A sale has been ordered at the request of the first and second mortgagees and
mortgagor, notwithstanding the third mortgagee insisted on a decree for foreclo-
sure and redemption : Wiokham v. Nicholson, 19 Beav. 38.
And the order for sale may be made instead of foreclosure, notwithstanding
that the mortgagor insists on a decree for foreclosure : Newman v. Selfe, 33 Beav.
522 ; 10 Jur. (N.S.) 251.
The Court has power to direct an immediate sale : Newman v. Bdfe, supra,;
but will not, as a general rule, or iit the absence of the mortgagors, direct an im-
mediate sale, but, as in case of foreclosure, will fix a day for payment, and in de-
fault direct a sale : Smith v. Robinson, 1 Sm. & GiEF. 150 ; Lloyd v. Whittey,
17 Jur. 754.
The usual time limited for payment is six months : ParJces v. Eousefield, 2
My. & K. 419 ; Lloyd v. Whittey, 17 Jur. 754 ; but when the sale is manifestly
for the benefit of all parties payment has been ordered within a month : Staines
V. Rudlin, 9 Hare, App. 53. And sometimes an immediate sale is ordered :
Wigham v. Measor, 5 W. E. 394.
The Court has no power to order a sale on an interlocutory application, but
only at that period of the suit when, before the Act, foreclosure might have been
decreed : Wayn v. Lewis, 1 Dr. 487 ; 22 L. J. (Oh.) 1051.
And after a decree for foreclosure has been made the Court has refused to vary the
decree by directing a sale : Girdlestone v. Lavender, 9 Hare, 53 ; 16 Jur. 1081.
But where the pit, the first mortgagee, applied, with the consent of the repre-
sentatives of the mortgagor, an order for sale was made, notwithstandin<' the
objection of a puisne incumbrancer : Laslett v. OUffe, 2 Sm. & Giff. 278.
Where the sale is made at the request of the mortgagor without the consent
of the mortgagee, the deposit required by the statute is indispensable, whatever
the value of the estate : Bellamy v. Cockle, 18 Jur. 465 ; Order, p. 365.
The amount of the deposit is generally fixed with reference to the probable
expenses of an abortive attempt to sell : Bellamy v. Cockle, 18 Jur. 465 ; Whit-
field v. Roberts, 5 Jur. (N.S.) 113.
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MORTGAGES. 369
Where in a foreclosure suit instituted by the first mortgagee against the mortr
gagor and subsequent incumbrancers, the second mortgagee asking for a sale but
objecting to the deposit, the Court gave the common foreclosure decree, with
liberty for the second mortgagee to apply in chambers for a sale upon such terms
as the Court should direct : Burmester v. Moxon, 35 Beav. 310.
Where the pit was the second mortgagee the conduct of the sale was given
to the first mortgagee on account of his possession of the deeds: Hewitt y.
Nanson, 28 L. J. (Ch.) N.S. 49. . •
After a decree for foreclosure, but before it was drawn up, a sale was directed
on the application of a deft puisne mortgagee, with the consent of the prior
mortgagee in the absence of the mortgagor, against whom the bill had been
taken pro corifesso : Woodford v. Brooking, L, E. 17 Eq. 425.
The Court has jurisdiction to make a foreclosure decree in respect of a mort-
gage between an English mortgagor and mortgagee of lands out of the jurisdic-
tion : faget v. Ede, L. E. 18 Eq. 118.
Defective and Imperfect Assurances.
It is said that either the legal or equitable mortgagee has a general right to a
sale where the security is scanty : Fisher, vol. i., p. 524. He may have this relief
if he institute his suit after the mortgagor's death, stating that the personal estate
is deficient : Daniel v. Skipwith, 2 Bro. C. 0. 154.
The mortgagee of a reversion has been held entitled to a sale on account of the
unproductiveness of his security : How v. Vigures, 1 Ch. Eep. 18.
If a mortgage valid in equity be defective as to its intended legal operation
— as a feoffment for want of livery, or a surrender of copyholds for want of pre-
sentment— the Court will make good the defect against the mortgagor : Mestaer
V. Gillespie, 11 Ves. 623 ; Taylor v. Wlieeler, 2 Vern. 565.
But no relief will be given to a prior mortgagee or judgment creditor where the
subsequent security is a mortgage duly executed without notice of the other :
Fisher, vol. ii., p. 641.
If the mortgagor's title be altogether defective, and he afterwards acquire a
good title, the new title may be applied to make good the defective conveyance :
Smith V. Baher, 1 Y. & C. Ch. 223 ; Taylor v. DeboA; 1 Ch. Ca. 274.
As to defective insurances by tenants in tail, see Fisher, vol. ii., p. 643.
There is no equitable relief on the defective transfer of a ship : McCalmont v.
Banhin, 2 De G. M. & G. 403. And a contract not perfected by the indorsement
of the certificate of registry or its recital cannot be made good in equity : Mestaer
V. Gillespie, 11 Ves. 621 ; Htujhes v. Morris, 2 De G. M. & G. 349.
EepAIRS.
The piortgagee in possession is bound to do such repairs as he can pay for out
of the rents received after his interest is paid : Bichards v. Morgan, 4 Y. & 0.
App. 570,
He will be allowed for repairs necessary for the support of the property : San-
don V. Hooper, 6 Beav. 246.
- The grantee of a rent-charge who.has entered into possession and into receipt
of the rents under a power, is also entitled to be allowed moneys expended by him
in repairs : Hooper v. CooTce, 20 Beav. 639.
The mortgagee, if he has had the acquiescence of the mortgagor, will also be
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370 MOETGAGES.
allowed for money laid out in increasing the value of the property : Sandon v.
Hooper, 6 Beav. 246.
But the improvements must not be such as to cripple the mortgagor's power of
redemption.: S. 0.
A mortgagee in possession will be allowed the expenses of buildings substituted
for decayed old buildings, even though the new erections should be upon an im-
proved scale : Marshall v. Gave, 3 L. J. (Oh.) 57.
But he is not obliged to rebuild or to lay out large sums beyond the rent : Eich-
a/rds V. Morgan, 4 Y. & 0. App. 570.
Nor is he bound to repair even if there be surplus rents after paying his interest,
if the premises were in such a state of repair when he took possession that he
could not repair without pulling down and rebuilding : Moore v. Painter, 6 Jur.
905.
Though he will be allowed sums expended in substantial improvements, he
will not be allowed sums expended in changing the nature of the property :
Moore v. Painter, 6 Jur. 903.
To entitle a mortgagee in possession to an inquiry at the hearing of the cause
as to money expended by him' in substantial repairs and lasting improvements,
some proof must be given of an expenditure having been incurred : Sandon v.
Hooper, 6 Beav. 246.
The words "just allowances" in a decree did not authorize an allowance for
improvements : Knowles v. Spencer, Mos. 226.
The cost of repairs to the mortgaged premises done by the mortgagee in pos-
session is a debt payable by his executrix out of his general estate, and is not
chargeable to the legatee of the mortgage : Qibbon v. Oibhon, 17 Jur. 416.
Where the mortgagee in possession is charged with deterioration of the pro-
perty for non-repair or improper cultivation, an inquiry has been directed : Wragg
V. Benham, 2 Y. & 0. 117. So, too, where charged with improperly allowing
mortgaged buildings to fall down : Batchelor v. Middleton, 6 Hare, 85 ; and with
having pulled down buildings : Sandon v. Hooper, 6 Beav. '250.
Upon an inquiry as to money expended in repairs and lasting improvements,
it may be found that mines have been opened and worked: Thorneycroft v.
Crockett, 16 Sim. 445.
Allowances.
The Court will not make an allowance to the mortgagee for his trouble in
receivmg the rents of the estate, notwithstanding an agreement with the mort-
gagor : French v. Baron, 2 Atk. 120.
And where a mortgagor had conveyed his property to trustees for the benefitof
his creditors, subject to certain mortgages, a mortgagee employed by the creditors
to receive the rents was not allowed a commission out of them : Nicholson v.
Tutin, 3 K. & J. 160 (V.-C. W.) ; 3 Jur. (N.S.) 235.
The Court will not allow a person to put himself in a position where his interest -
will be inconsistent with his duty : Ibid. ; Broughton v. Brouqhton, 5 De G. M.
&G. 160.
So, too, where a mortgagee was member of a firm, who sold for him under a
power in the mortgage-deed, the firm were not allowed their commission for con-
ducting the sale : Mathison v. Clarke, 3 Drew. 3 ; 18 Jur. 1020.
A mortgagee cannot be paid as receiver. But where the nature of the estate
is such that great time and trouble must be sacrificed in the receipt of the rents.
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MORTGAGES. 371
the mortgagee may appoint a receiver, who will be allowed commission out of the
rents : Davis v. Bendy, 3 Madd. 170.
And persons in the position of mortgagees selling under the direction of the
Court are not deprived of the remuneration to which they, would ordinarily be
entitled because they are mortgagees of the same property : Arnold v. Oarner,
2 Ph. 231 ; Fisher, vol. ii., 891.
Where a receiver or bailiff is required, the mortgagee in possession may employ
him, and debit the estate with what is necessary to pay him, but cannot credit
himself with such payments for his own trouble if he does the business himself :
Godfrey v. Watsm, 3 Atk. 518.
As regards commissions allowed in respect of mortgages upon West India pro-
perties, see Ltith v. Irvine, 1 My. & K. 277 ; Faulhner v. Daniel, 3 Hare, 218.
The mortgagee will be allowed expenses incurred by him in supporting the
mortgagor's title when impeached ; Ood/rey v. Watson, 3 Atk. 517 ; Sandon v.
Hooper, 6 Beav. 246.
Where a mortgagee in possession has without authority opened and worked
mines on the mortgaged estate, he will be charged with his receipts, but dis-
allowed his expenses : Thomeyeroft v. Crockett, 16 Sim. 445 ; Httghes v. Williams,
12 Ves. 493.
Wilful Default.
Where a mortgagee is in possession as mortgagee, the account directed against
him is of moneys which without wilful default might have been received. No
special case need be made out to support that form of inquiry : Kensington v.
Bouverie, 7 De G. M. & G. 156 ; 1 Jur. (N.S.) 581.
To charge a mortgagee in possession actual fraud is not necessary. It is
sufficient if there be obvious and gross negligence : Hughes v. Williams, 12 Ves.
493.
He may be made to account for loss occasioned by negligence in respect of
bad cultivation and non-repair : Wragg v. Denham, 2 Y. & 0. 117.
Where a prima facie case of gross negligence is made out, the Court will
direct an inquiry : S.O.
But a mortgagee in possession is at liberty to take the fair rents and profits.
He is not bound to enter into any speculation or adventure. And if the mort-
gagor knows the estate to be underlet he should give notice to the mortgagee :
Hughes v. W^iams, supra.
The price at which the mortgagor proves the estate to have been let whilst
in the hands of the mortgagee will be taken to be the rate at which it was let
during the whole time of his possession unless he shews the contrary : Fisher,
883 ; Blacklock v. Barnes, Sel. Ch. Ca. 53.
Where a tenant is permitted to remain several years in possession without pay-
ing rent, and none being demanded by the mortgagee, he is liable for wilful
default as to such rent : Brandon v. Brandon, 10 W. R. 287.
The onus lies prima facie on the party chai^ng wilful default in not letting to
prove it. But if he shews that the property can be let, or has been let, the onus
is transferred to the mortgagee : S.C.
Where unfinished buildings were mortgaged by way of underlease, the deed
empowering the mortgagee to sell, and apply the proceeds and rents in repairs,
the mortgagee in possession was held liable to make good the loss occasioned by
the forfeiture (for non-completion) of the mortgagor's lease : Perry v. Wfdker,
1 Jur. (N.S.) 746; 24 L. J. (Ch.) 319.
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372 MOBTGAGES.
LiND Tax — Insurance Monet — Fines.
The mortgagee will be- allowed moneys paid for the renewal of leases, although
the mortgagor may not have covenanted that he will renew : Lacon v. Mertins,
3 Atk 4 ; Manlove y. Bak, 2 Vern. 84.
He will also be allowed moneys paid for the redemption of the land tax :
Knowles v. Chapman, cited in Seton, 468.
And premiums paid by him on insurances which the mortgagor has covenanted
to keep up : Barl FitzwilUam v. Price, 4 Jur. (N.S.) 889,
The person to whom any principal money secured or charged by deed on any
hereditaments shall for the time being be payable, his executors, administrators,
and assigns, are empowered (unless the power be negatived in the security) at any
time after any omission to pay any preinium on any insurance which by the
terms of the deed ought to be paid by the person entitled to the property subject,
to the charge, to insure and keep insured the property, and to add the premiums
" paid to the principal money secured : 23 & 24 Vict. c. 145, ss. 11, 32.
Where the mortgagor and mortgagee have effected a joint insurance, the mort-
gagee paying the premium, the mortgagor having induced the insurance company
to pay him the money insured, upon a bill filed by the mortgagee against the
assignees of the mortgagor, the, Court ordered the money to be brought into
Court : Rogers v. Orazebrooh, 12 Sim. 557.
Interest.
Upon bond and mortgage debts interest is payable, though it be not ex-
pressly reserved, and whether the mortgage be legal or equitable: Anon.,^Ta.\mt.
876 ; Ashwdl v. Staunton, 30 Beav. 52.
And an agreement to pay interest up to a certain time does not exclude a
contract to pay it after that time : Price v. Great Western Railway Company,
16 M. & W. 244 ; King v. Qreenhill, 6 M. & G. 59.
Interest has been allowed upon sums expended by the mortgagee in working
mines where he was authorized by the deed to work them : Norton v. Cooper,
25 L. J. (Ch.) 121.
But it is not the practice generally to allow interest upon money expended by
the mortgagee in repairs : Elisha v. Elisha, M. E., 14 Feb. 1812 ; Seton, 384.
As a general rule, interest is not allowed upon arrears of an annuity, though
it be charged upon land, except under special circumstances, and the. security
of a bond raises no equity for interest on the arrears : Booth v. Leycester, 3 My.
& Cr. 459 ; Grant v. Taylor, 3 My. & K. 302.
Bond debts generally carry no interest either at law or in equity beyond the
amount of the penalty. But the conduct of the obligor, the interference of the
Court, and other special circumstances, make exceptions to this general rule:
Fisher, 914, and cases there cited.
Every judgment debt in England bears interest at the rate of £4 per cent. ■
per annum until satisfaction from the entering up of the judgment : 1 & 2 Vict,
c. 110, s. 17.
And every debt due on a judgment not confessed or recovered for any penal
sum, for securing principal and interest in Ireland, bears the same rate : 3 & 4
Vict. c. 105, s. 26.
For cases of conversion of interest in arrear into principal, see Fisher, vol. ii.,
p. 916-921.
By 3 & 4 Will. 4, c. 27, s. 42, no arrears of interest in respect of any sum of
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MOETGAGES. 373
money charged upon or payable out of any land or rent can be recovered by
any distress, action, or suit but within six years next after the same respectively
shall have become due, unless the case can be brought within the exceptions
contained in sect. 25 of that Act. See also 3 & 4 Will. 4, c. 42, and 3 & 4
Vict. c. 105, s. 32.
But where the proceeds of sale of mortgaged premises sold under a power by
the trustees of the mortgagee were paid into Court .in a suit to administer the
mortgagee's estate, and the trustees petitioned for payment to satisfy twenty
years' aiTears of interest, it was held that the petition was not a suit to recover
aiTears of interest within the Acts, and that the trustees were entitled to more
than the six years' arrears : JEdmunds v. Waugh, L. B. 1 Bq. 418, questioning
Mason v. Broadbent, 33 Beav. 296.
A prior incumbrancer is not by mere laches in enforcing payment of his
interest deprived of his right to that interest as against the puisne incumbrancer :
Aston v. Aston, 1 Ves. 263.
An infant tenant in tail is bound, as in the case of a tenant for life, to keep
down the interest of the charge during the continuance of his estate to the extent
of the rents and profits : Sarj'eson v. Cruise, 1 Ves. 477, 480 ; £evel v. WatMn-
son, 1 Ves. 93 ; Ameshury v. Brown, Ibid. 477.
But an adult tenant in tail of an incumbered estate is not bound to keep down
the interest : Chaplin v. Chaplin, 3 Atk. 234.
If, however, the tenant in tail has died without barring the entail after keeping
down the interest, or taking an assignment of the mortgage, the personal represen-
tatives of the tenant in tail have no equity to charge the reversion with interest
accrued during his life : Fisher, vol. ii., p. 905 ; Ameshury v. Brown, 1 Ves. 477.
A reversioner or succeeding tenant, for life is entitled to compel payment by
the tenant for Ufe of the interest out of the rents : 5 Ves. 116 ; Revel v. Watkin-
son, 1 Ves. 93.
If an estate has been partly in possession of a tenant for life, and partly of a
person who takes under the limitations of a prior settlement (as a jointress), the
tenant for life must discharge the arrears which accrued in the time of the para-
mount estate out of the additional rents received at its expiration : Eevel v. Wat-
kinson, 1 Ves. 93 ; Tracy v. Lady Eerefm-d, 2 Bro. C. 0. 128.
Interest arises on a mortgage from day to day : Wilson v. Barman, 2 Ves.
672. But it is said to be a rule of the Court of Chancery in Ireland that it ought
not to run in the case of a general and national calamity : Basil v. Achescm,,
2 Eq. C. Ab. 611.
In the latter case it was ordered by the House of Lords that in taiing the
account such abatements or allowances were to be made for interest as were
iTsiially made in Ireland, on account of rebellion or other public calamities happen-
ing to affect estates in mortgage : Fisher, vol. ii., p. 901.
Interest will be allowed upon fines paid by the mortgagee (Manlove v. Bale, 2
Vem. 84 ; Lacon v. Merttns, 3 Atk. 4), upon premiums on life policies forming
part of the security (Bellamy v. Brickenden, 2 J. & H. 137) ; upon money laid
out in supporting mortgagor's title {Quarrel v. Beckford, 1 Madd. 281); upon
money laid out in redemption of land tax (Seton, 467) ; where the principal laid
out is allowed.
Subsequent Interest.
In suits for administration, where the mortgaged estate has been sold, it is the
practice to compute subsequent interest on the principal only : Whatton v. Cra-
dock, 1 Keen, 267 ; Bre^JtkS^^f^ l^i^f&^(M^
374 MORTGAGES.
And in foreclosure suits, when the time for redemption is enlarged on payment
within a short time of interest and costs, subsequent interest can of course be
given upon the principal only: Fisher, vol. ii., p. 922; Edwards v. Gunliffe,
1 Madd. 287 ; Jones v Oreswick, 9 Sim. 304.
But if the Court should enlarge the time without imposing this condition, or
requiring payment of interest on the whole principal, interest, and costs, it will be
payable on the principal and costs only : Whitfield v. Roberts, 7 Jur. (N.S.) 1268.
Where interest runs on the whole sum found due by a certificate, it so runs
only from the confirmation of the certificate, and up to that time on the principal
only : Jacob v. Earl of Suffolk, Mos. 27 ; Kdley v. Lord Bellew, 4 Bro. P. (!.
495.
Eatb of Interest.
If the mortgagee stipulates for a higher rate of interest in default of punctual
payment, he must reserve the higher rate as the interest payable under the mort-
gage, and provide for its reduction in case of punctual payment : Strode v. Parker,
2 Vem. 316 ; Jory v. Cox, Prec. Ch. 160.
Where no rate of interest is fixed by the parties, the Court can fix it, and will
adopt the current rate of £5 per cent. : Ashwell v. Staunton, 30 Beav. 52 ; and
in the case of further advances the interest is generally given at the same rate as
upon the moneys originally lent : Gregory v. Pilkington, 8 De G. M. & G. 616.
Where a simple contract debt has been secured by deposit of title deeds, unac-
companied by any stipulation as to interest, the mortgagee is entitled to interest
at £4 per cent. : In re Kerr's Policy, L. E. 8 Eq. 331.
Costs.
The general rule is that the principal, interest, and costs of a mortgagee go
together ; and the circumstance of there being a decree for sale instead of fore-
closure does not prima faeie change the rights of the parties. If the decree
directs an account of the principal and interest due on the mortgages, and in the
same sentence directs taxation of the costs of the mortgagees, the costs must be
payable in the same priority as the principal and interest.
If a decree for sale is conceded upon terms in order to prevent the operation of
the general rule, the terms must appear : Barnes v. Bacster, 1 Y. & C. 401, 403.
The Court permits the mortgagee to add to his debt all such costs as have been
reasonably and properly incurred by him in any action of ejectment or other
proceeding at law for the recovery of the estate, or for the establishment or
defence of the mortgage title : Detillin v. Gale, 7 "Ves. 583 ; Dunstan v. Patter-
son, 2 Ph. 341 ; Lord Midleton v. Eliot, 15 Sim. 531.
The costs will be allowed to the mortgagee of taking out administration to the
mortgagor, or to a person interested under his will as a necessary party : Ramsden
V, Langley, 2 Vem. 536 ; Hunt v. Fownes, 9 Ves. 70.
And of obtaining a stop order upon fund in Court, the subject of the mort-
gage : Hoole v. Roberts, 12 Jur. 108. But there must be a special direction to
the taxing master to allow the mortgagee his costs of obtaining the stop order :
Waddilove v. Taylor, 6 Hare, 307.
But it is essential to the claim of the mortgagee that his proceedings should
have been reasonable, for the allowance of the costs is in the discretion of the Court :
Fisher, 957 ; and the moi'tgagee may, in cases of misconduct, be made to pay
costs : Shuttleworfh v. Lowther, cited 7 Ves. 586 ; Baker v. Wind, 1 Ves. 160 ;
Thornton v. Court, 4 De G. M. & G. 293.
Thus, if havins onlv£);^^fe^& Sl^^'ytf/c'?&^65?^= °" °"""" " '""' '^" *^"
MORTGAGES. 375
legal owner for tlie recovery of the estate : Dryden v. Frost, 3 My. & Or. 670 ;
2 Jur. 1090. Or, if he sue for rent in the name of a person who has no right to
sue : Burke v. O'Connor, i Jr. Ch. Rep. 418.
Nor is the moi-tgagee entitled to costs against the devisees of the equity of
redemption of an action against the mortgagors executor for recovery of money
due from the mortgagor's personal estate : Lewis v. John, 9 Sim. 366.
And if, upon taking the accounts in a redemption suit, the mortgagor proves
that nothing was due to the mortgagee at the time of fiUng the bill, the mort-
gagee will he made to pay the costs of suit : Barlow v. Gains, 28 Beav. 244.
But prima facie the mortgagee in possession has a right to the costs of a^
suit instituted to take the account : Snagg v. Fuzell, 3 J. & Lat. 383, cited in
Fisher, vol. ii., 950.
A direction in the decree to tax the mortgagee his costs of suit amounts to a
direction to pay him his whole costs without stopping at any part of the cause,
although the mortgagee may have raised an improper defence : Quarrell v.
Bschford, 1 Mad. 269; Wilson v. Metcalfe, 1 Buss. 530.
The objection to the form of decree as regards the payment of mortgagee's
costs should be made at the hearing ; Price v. McBeth, 10 Jur. (N.S.) 579.
The costs of and incident to preparing the mortgage are not mortgagee costs,
the payment of which may be insisted upon in a foreclosure suit : Gregg v.
Slater, 2 Jur. (N.S.) 246.
But if the mortgagee, after the time for payment has passed, assigns or executes
sub-mortgages, and then files a bill of foreclosure against the sub-mortgagees, the
original mortgagee is entitled to add their costs to his debt : Smith v. Chichester,
2 D. & War. 393 ; Bartle v. Wilkins, 8 Sim. 239.
But if the assignment or sub-mortgage be made after decree, the mortgagor
will not be charged with the costs of the supplementary proceedings by which
the assignee or sub-mortgagee is brought before the Court: Barry y. Wrey,
3 Russ. 465.
The same rule appears to apply where the assignment or sub-mortgage occurs
before decree, but after the institution of the suit : Coles v. Forrest, 10 Beav. 552.
And where an order was made in a foreclosure suit to revive against an
assignee after decree, it was ordered to he specified that the costs should be paid
by the pit : James v. Earding, 24 L. J. (Oh.) 749 ; Fisher, vol. ii., 964.
But where, pendente lite, the pit in a foreclosure suit obtained a transfer from
the second mortgagee, the costs of the transfer were held properly chargeable
against the estate : Coles v. Forrest, supra.
A purchaser ^enrferefe lite comes into Court pro hono et malo, and may become
liable for the whole costs of suit : Anon. 1 Atk. 89.
Where the decree directs an account of what is due for principal and interest
under the mortgage deed, without any special direction as to the costs of legal
proceedings taken by the mortgagee, he may carry in a claim for those costs,,
either as principal moneys due upon the security, or under the head of just
allowances : Blackford v. Davis, L. R. 4 Ch. 304.
A mortgagee will not be deprived of his costs in a redemption suit because he
has overstated the amount due to him : Cotterell v. Stratton, L. R. 8 Bq. 295.
Ee-Conveyance — Costs.
The costs of re-conveyance are borne by the mortgagor, as well in ordinary
cases as where the estate has been settled or devised by the mortgagee, or has
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376 MORTGAGES.
descended : Fisher, vol. ii., p. 965 ; 6 Hare, 475 ; 1 De G. M. & G. 436 ; except in the
case where the mortgagee is of unsound mind : Se Townshend, 2 Ph. 348 ; Be
Wheeler, 1 Be G. M. & G. 434 ; Hawkins v. Ferry, 3 De G. M. & G. 439; 4
W. E. 686.
On tender by a person having a partial interest giving a right to redeem, the
mortgagee is bound to convey, but the conveyance should reserve the equities of
the other persons interested : Pearce v. Morris, L. R. 5 Oh. 227.
" The legal personal representative of a mortgagee of a freehold estate or of
a copyhold estate to which the mortgagee shall have been admitted, may, on
payment of all sums secured by the mortgage, convey or surrender the mortgaged
estate, whether the mortgage be in form an assurance subject to redemption, or
an assurance upon trust " : The Vendor and Purchaser Act, 1874 (37 & 38 Vict.
0. 78), s. 4.
Costs of DiscLAiMma Parties.
In suits for foreclosure or redemption where a deft disclaims in such a manner
as to shew that he never had and never claimed any interest, or, having an in-
terest, that he disclaimed, or offered to disclaim, before the institution of the suit,
he is also entitled to his costs : Ford v. Earl Chesterfield, 16 Beav. 516.
But where a deft having an interest neither disclaimed nor offered to disclaim,
until he put in his answer or disclaimer, he was not entitled to his costs : S. 0.
These rules were approved by V.-C. Wood in Bellamy v. Brickenden, 4 K.
& J. 670.
Where a deft disclaiming in proper form, and by his disclaimer offering to be
dismissed without costs, is yet brought to a hearing, he will be entitled to his
costs incurred subsequent to the disclaimer : Davis v. Whitmore, 28 Beav. 617 ;
Dillon V. Ashwin, 10 Jur. (N.S.) 119 ; Ward v. Shakesha/t, 1 Dr. & Sm. 269.
But where a party not content with disclaiming, put in an answer and ap-
peared simply for the purpose of claiming costs, he was not entitled to any costs :
Maxwell v. Whitwick, L. E. 3 Eq. 210.
It is not necessary that the offer to disclaim should contain also an offer to pay
the costs of the disclaimer : Lock v. Lomas, 15 Jur. 162.
Where a deft assigns his interest before answer he ought not under the former
practice to have filed an answer and disclaimer without communicating to the
plaintiff's solicitor ; otherwise he will have no costs : Fisher, vol. ii., p. 974 ;
Hawkins v. Oardiner, 17 Jur. 780.
On the other hand, the pit ought not, under such circumstances, to strike
out the deft by amendment before moving to dismiss ; and if he occasion the
deft any costs by so doing, the deft will be entitled to be indemnified in respect
of such costs : S. C.
Adding Costs to Debt aftek Decree.
Where after a decree for foreclosure and afler the accounts had been taken the
mortgagee incurred further costs in another proceeding, a petition to add to the
decree by providing for such costs was refused: Barron v. lancfield, 17
Beav. 208.
Costs of lost Deeds.
If upon the mortgagor's refusal to repay the debt by reason of the non-
production of the deeds, aud the mortgagee's refusal to give a satisfactory indem-
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MORTGAGES. 377
nity, a bill of foreclosure be filed, or an ejectment brought, the mortgagee will
have to pay the costs of those proceedings : Stohoe v. Bolson, 19 Ves, 385 ; Lord
Midkton v. Eliot, 15 Sim. 531 : Fisher, vol. ii., p. 963.
So, too, upon a bill to redeem by mortgagor where he requires a re-conveyanoe,
upon non-production of the deeds the mortgagee will be made to pay the costs of
suit : Lord Midleton, v. Eliot, supra.
Account with Eests.
The usual mode of taking accounts against the mortgagee in possession is to
set aside the total amount of rents and profits received by or found to be charge-
able to him, against the whole amount due upon the mortgage debt, viz., in
discharge successively of the interest of the mortgage debt, of money advanced
for costs and improvements, and then of the principal of the same moneys : Fisher,
vol. ii., p. 894 ; Well v. Bocke, 2 Sch. & Lef. 661.
The account with rests is applicable to the case of mortgagees in possession
of real estate, but not of personal estate : BoUnson v. Cumming, 2 Atk, 410.
Where the annual excess of rents is applicable to sinking the principal, the
annual rests are not given as of course, but only under special circumstances, and
they will not be directed for broken periods of time : Davis v. May, Coop. 240 ;
19 Ves. 382 ; Qould v. Tancred, 2 Atk. 533.
But rests may be directed from the time at which the accounts show that
the principal of the mortgage money was paid off: Wilson v. Metcalfe, 1
Buss. 530.
Generally, annual rests are not directed against a mortgagee in possession
where the interest is in arrear at the time he took possession : Wilson v>
Oluer, 3 Beav. 136 ; Nelson v. Booth, 3 De G. & J. 119.
Where half a year's interest of the mortgage money was in arrear the mort-
gagee was held exempted from an account with rests: Moore v. Painter, 6
Jur. 903.
And in the absence of special circumstances, if not liable to account with
annual rests when he enters into possession, he does not become so liable until
the whole mortgage debt is paid off : Wilson v. Cluer, 3 Beav. 136.
But where the mortgagee comes to an account with his mortgagor whereby all
arrears of interest were converted into principal, the Court has directed annual
rests : S. C.
And there may be other circumstances in a case which, although no interest
might have been in arrear when the mortgagee took possession, may induce the
Court not to take the accounts against the mortgagee with annual rests : Patch
V. Wild, 30 Beav. 102.
Aimual rests may be directed in an account of occupation rent as well as in
an account of rents and profits received : Wilson v. Metcalfe, 1 Buss. 530.
Generally, rests will not be made in taking the accounts unless directed by
the decree : Qould v. Tancred, supra ; Webler v. Sunt, 1 Madd. 13. And where
omitted in the decree they cannot be directed in Chambers under 15 & 16 Vict,
c. 86, s. 54, or under Cons. Ord. xxxv. r. 19: Nelson v. Booth, 3 De G. &
J. 119.
But where upon taking the accounts the principal money appears to have
been paid off from that period, a subsequent order of the Court (not made in
Chambers) may direct the rests : Wilson v. Metcalfe, supra ; Patch v. Wild, 30
Beav. 102.
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378 MOKTaAGBS.
Eeceivee.
A power to appoint a receiver of the rents and profits of hereditaments of any
tenure_upon which any principal money is secured hy deed may be exercised (un-
less the power be negatived by express declaration in the security) by the mort-
gagee or his representatives after the expiration of a year from the time the money
became payable, or after any interest shall have been in arrear for six months, or
after an omission to pay premiums on insurance : 23 & 24 Vict. ss. 11, 32.
A mortgagee having the legal estate is not entitled to a receiver appointed by
the Court, although the tenants may be numerous and the rents difiScult to
collect : Stwrch v. Toung, 5 Beav. 557.
And a receiver was refused to an equitable incumbrancer where there was a
power of entry and distress : Buxton v. Monkhovse, Coop. 41.
A puisne mortgagee or other equitable incumbrancer is generally entitled to a
receiver where the prior mortgagee is not in possession : Dalmer. v. Dashwood,
2 Cox, 378 ; Golman v. Duke of St. Albans, 3 Ves. 32 ; Anderson v. Kemshead,
16 Beav. 329.
And the Court will grant a receiver against a prior mortgagee in possession
where his conduct renders it impossible to say whether anything is due : Cod-
rington v. Parker, 16 Ves. 470.
The Court will not grant a receiver against a prior mortgagee in possession
where anything is due to him : Quarrell v. Beckford, 13 Ves. 377 ; Codrington v.
Parker, 16 Ves. 470.
If there be any prior incumbrancer not in possession, the receiver will be ap-
pointed without prejudice to the right of such person to take possession : Bryan
V. Gormick, 1 Cox, 422 ; Berney v. Sewell, 1 Jac. & W. 647 ; Davis v. Duke of
Marlborough, 2 Sw. 137 ; Rhodes v. Mostyn, 17 Jur. 1007.
Where the receiver has been appointed in the absence of the prior mortgagee,
the latter may apply as of course to bring ejectment : Bryan v. Cormick, 1 Cox,
422.
But the ejectment cannot be brought without leave of the Court where there is
a receiver : Angell v. Smith, 9 Ves. 335.
Where a person takes a conveyance of a legal estate .subject to equitable
interests, he must satisfy those interests, or he may be subjected to a receiver:
Pritchard v. Fleetwood, 1 Mer. 54.
Although the Court will not by the appointment of a receiver deprive a prior
mortgagee having the legal estate of his right to possession, he must himself take
possession if he objects to the appointment : Silver v. Bishop of Norwich, 3 Sw.
112, n.
And if after the appointment of a receiver such mortgagee does not avail him-
self of his legal rights he will not be permitted to take the benefit of the receiver:
Anon. 6 Ves. 287 ; Angel v. Smith, 9 Ves. 335, 338.
As between mortgagees in possession and persons having subsequent interests,
the Court will not appoint a receiver against the prior mortgagees' statement on
oath thdt something is due : Bowe v. Wood, 2 Jac. & W. 553, 557.
But if the incumbrancer applying for the receiver offers to pay oflf the prior
mortgagee upon his own statement on oath of the amount of the debt, the
receiver will be appointed, and the mortgagor must give security to refund if,
upon taking the account, he shall have been overpaid : Chambris v. Ooldwin,
cited 13 Ves. 376 ; Quarrell v. Beckford, Ibid.
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MORTGAGES. 379
And if the prior mortgagee will not supply any evidence as to the amount due,
the r-eceiver will be Appointed : S. 0 .
Where fraud can he proved the Court will grant a receiver against the legal
title : Lloyd v. Passingliam, 16 Ves. 70.
But in such case evidence must be given that there is danger to the interme-
diate rents : Ibid ; see too Stilwell v. WilMns, Jac. 280, 283 ; 6 Madd. 49 ; Pod-
more V. Ounning, 5 Sim, 485.
Fixtures and Chattels.
As a general rule, by the mortgage of land, fixtures, consisting of ordinary
house and trade fixtures, belong to the mortgagee : Ex parte Barclay, 5 De G.
M. & G. 403.
And distinctions are not generally made between the case of machinery
placed upon land for the purpose of trade or manufacture, and that of machi-
nery placed upon land for the mere purpose of better enjoying the land : Fisher
V. Dixon, 1 CI. & F. 312.
The principle upon which the rule of law that fixtures pass with the soil is
relaxed in favour of trade has no application where the parties who affix the
machinery are themselves owners in fee of the soil : Mather v Fraser, 2 K. & J.
536 ; Order, p. 360.
And where fixtures are added by the mortgagor after the mortgage they will
vest in the mortgagee, whether they be or he not such as are reasonable between
landlord and tenant: Walmsley v. Milne, 6 Jur. (N.S.) 125 ; Suffordv. Bishop,
5 Russ. 346.
Trade fixtures will also pass to the mortgagee when annexed to the freehold
after the mortgage deed by a firm in which the mortgagor is a partner: Fx parte
Cotton, 2 M. D. & D. 725 ; CullwickY. Swindell, L. E. 3 Eq. 249 ; Order, p. 361.
Where, however, a mortgage enumerates various fixtures but does not refer to
the fixtures in dispute, the Court has held that they were intentionally omitted
from the mortgage deed, and therefore did not pass by it : Trappes v. Barter,
2 C. & M. 153.
And if two kinds of property be mortgaged with the fixtures in one of them
the principle, Fxpressio unius est exclusio alterius, holds good : Fisher, vol. i.,
p. 27 ; Hare v. Horton, 5 B. & Ad. 715.
The rule as to vesting fixtures in the mortgagee of the buildings or soil to
which they are annexed extends to the mortgages of leasehold as well as of real
estate -.^ Langstaff v. Meagoe, 2 Ad. & B. 167; Ex parte Barclay, 5 De G.
M. & G. 403.
As to the extent of the term " fixtures," see Mather v. Fraser, 2 K. & J. 536 :
Haley v. Hammersley, 7 Jur. (N.S.) 765 ; Walmisley v. Milne, 6 Jur. (N.S.)
125 ; Metropolitan Counties Society v. Brown, 26 Beav. 454.
It is not necessary to register, under the Bills of Sale Acts, a conveyance or
contract by which a legal or equitable interest in fixtures or other chattels as
mere adjuncts to the land is passed : Mather v. Fraser, 2 K. & J. 536.
But trade fixtures, not permanent adjuncts to the land, are within the Acts
when separately assigned : Waterfall v. Penistone, 3 Jur. (N.S.) 15.
The mortgagee of stock or personal chattels may proceed to a sale without
bringing his bill for foreclosure : Tucker v. Wilson, 1 P. Wms. 260 ; Lockwood v.
^iwe", 2.Atk. 303.
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380 MORTGAGES.
But lie is also entitled to bring Us suit for foreclosure. The mortgagee of a
reversionary interest in stock in the public funds cannot be made to submit to
a decree for sale. He is entitled to a foreclosure decree in the common form :
Slade V. Sigff, 3 Hare, 35 ; Wayne v. Eanham, 15 Jur. 506.
Stock and personal chattels may also be redeemed in equity where it is neces-
sary to take an account of what is due on the security; Kemp v< WestbrooJe;
1 Ves. 278 ; Demainbray v. Metcalf, 2 Vern. 690,. 698.
Although stock may be redeemed the privilege will be sparingly allowed if the
bill be brought on account of an accidental increase in the value of the pledge :
Lockwood V. Ewer, 2 Atk. 303.
EQUITABLE MORTGAGES.
Agreement to mortgage — Conveyance.
Declaek that the agreement, dated, &c., made between, &c., ought to
be specifically performed and carried into execution, and decree the same
accordingly. Let the Deft execute to the Pit a proper indenture of mort-
gage of his property mentioned in the said agreement according to the
terms of the said agreement. Let all proper parties join therein as the
judge shall direct. And Let such indenture of mortgage be settled by
the judge in case the parties dilFer. Let the Deft deliver up on oath to
the Pit the title deeds and documents of title relating to the said estate
which are now in his possession or power. Let the Deft pay to the
Pit his costs of this suit (including the costs of such indenture of
mortgage), such costs to be taxed by the taxing master in case the
parties diffeT. — Liberty to apply. Ashton v. Corrigan, L. E. 13 Eq. 76 ;
Herman v. Hodges (L.O. for M.E.), L. E. 17 Eq. 18.
Deposit of Deeds — Conveyance.
Declare that the title deeds relating to the estate in question having
been deposited by A., the bankrupt, in the hands of the Pit, the Pit is
entitled to be considered in this CoTjrt as if he were a mortgagee of the
hereditaments therein comprised, and decree the same accordingly.
Let an account be taken of what is due for principal m.oney
advanced on the said deposit, and for interest thereon, and for (Josts of
this suit (such costs to be taxed, &c.). Declare that such principal,
interest, and costs are to be considered as a charge upon the said
hereditaments.
Let, upon the Deft T. paying to the Pit within six calendar months,
<feo., at such time and place, &c., the Pit deliver up all deeds, &c.
Declare that in default of such payment by the time aforesaid, the
Pit will be entitled to the said hereditaments free and clear of and
from all right, title, interest, and equity of redemption, of, in, and to
the same, and to have an absolute conveyance thereof accordingly.
And in that case Let the Deft execute such conveyance thereof to
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MOBTGfAQES. 381
the Pit (to be settled by the judge in case the parties differ). — Liberty
to apply. FranUin v. Eowes (V.-C. S.), Mar. 8, 1871.
Deposit of Deeds — Copyholds — Surrender.
Declare that the copies of Court rolls and muniments of title re-
lating to the estate in question in this cause having been deposited by
J. B. and the Deft F. B. in the hands of the Pit, the Pit is entitled to^
be considered in this Court as if he were a mortgagee of one moiety of
the hereditaments therein comprised of which the said J. B. was, at
the time of such deposit, tenant in tail, and which, by reason of the
death without issue of the said J. B., the Deft F. B. is now possessed
of or entitled to.
Let an account be taken of what is due to the Pit for principal
money advanced on the two deposits for securing £500 each in the
pleadings mentioned, and for interest thereon after the rate of £6 per
cent, per annum, and for costs of this suit so far as the bill seeks to
charge the said J. B.'s moiety now vested in the Deft P. B. as aforesaid
(such costs to be taxed, &c.).
Let, upon the Defts or either of them paying to the Pit what shall
be certified to be due to him for such principal, interest, and costs as
aforesaid, within six calendar months, &c., at such time and place, &c.,
the Pit deliver up the copies of Court rolls and muniments of title, &c.
Declare that in default of the said Defts, or either of them, paying
by the time aforesaid, the Pits will be entitled to the said mortgaged
hereditaments free and clear of and from all right, title, interest, and
equity of redemption of, in, and to the same, and that the Pit will be
entitled to have an absolute surrender thereof accordingly. And in that
case Let the Deft P. B. surrender the said mortgaged hereditaments
to the Pit, or as he shall direct. — Liberty to apply. Pryce v. Bury,
2 Drew. 41 ; Seton, 444.
Deposit of Deeds — Account of Bents received — Conveyance.
Let the Pit pay to the Deft his costs of this suit to be taxed by the
taxing master : and the Pit is to be at liberty to add what he shall
so pay to his security. Declare that the title deeds relating to the
estate in question in the pleadings mentioned having been deposited
by T. J., deceased, in the hands of the Pit, the Pit is entitled to be con--
sidered as if he wate a mortgagee of the premises therein comprised, and
order and decree the same, accordingly. Let the following accounts be
taken :-^
1. An account of what is due to the Pit for principal money
advanced on the said deposit and secured by his said equitable mort-
gage, and for interest thereon at the rate of £4 per cent, per annum,
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382 MORTGAGES.
and for costs of suit (such costs to be taxed by the taxing master).
2. An account of the rents and profits of the said premises received by
the Pit, or by any other person or persons by his order or for his use.
Let the amount of such rents and profits be deducted from the
amount which shall appear due to the Pit on taking the account
numbered 1. Declare that the balance of such principal, interest, and
costs, and the amount which the Pit shall pay for the taxed costs
of the Deft (the total amount to be certified) be considered a charge
upon the said hereditaments. Let, upon the Deft paying to the Pit
what shall be certified to be due to him as aforesaid within six calen-
dar months after the date of the chief clerk's certificate, at such time
and place as Khali be thereby appointed, the Pit deliver up all deeds
and writings in his custody or power relating thereto to the Deft, or
to whom he shall appoint. But in default of the Deft paying to the
Pit what shall be certified to be due within the time aforesaid. Declare
that the Pit will be entitled to the said hereditaments free and clear
of and from all right, title, interest, and equity of redemption of, in,
and to the same, and to have an absolute conveyance thereof ac-
cordingly. And in that case Let the Deft execute a proper conveyance
thereof to the Pit (to be settled by the judge in case the parties
differ). — -Liberty to apply. James v. James, L. E. 16 Eq. 153.
Equitable Mortgage — Reversion — Conveyance.
Declare that the Pit is entitled to a lien in the nature of an
equitable mortgage on the Deft's reversion or remainder in fee expect-
ant on the death of W., of and in the several messuages, &c., — for
the sum of £ — , and interest thereon.
Let an account be taken of what is due to the Pit for principal and
interest on the said sum of £ — •. Let, upon the Deft paying to the
Pit what shall be certified, &c., within six calendar months, <feo., at such
time and place, &c., the Pit deliver up all deeds, &c., or as be shall
appoint. But in default, &c., Declare that the Pit will be entitled to
the said reversion of the said messuages, &c., expectant upon the death
of the said W., free and clear of and from all right, title, &c., and to
have a conveyance thereof accordingly. And in that case Let the
Deft execute to the Pit a proper conveyance thereof (to be settled by
the judge in case the parties differ). — 'No costs on either side. — Liberty
to apply. Langdon v. Wilm^t (L. C), 1828 ; Seton, 449.
Legal and Equitable Mortgage — Assignment of Lease.
Declare that the lease, dated the 8th November, 1862, of the
messuage and premises, situate, &c., in the pleadings mentioned, hav-
ing been deposited by the Deft in the hands of the Pits, the Pits are
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MORTaAGBS. 383
entitled to be considered in this Court as if they were mortgagees of
the said leasehold messuage and premises, and order and decree the
same accordingly.
Let an account he taken of what is due to the Pits for principal' and
interest and commission by virtue of the memorandum of deposit
of the said lease, and by virtue of the indenture of mortgage, dated the
28th October, 1869, in the pleadings mentioned, and for the costs,
charges, and expenses of the attempted sale of the hereditaments com-
prised in the said indenture properly incurred, and for their costs of
this suit, to be taxed, &c. Let, upon the Deft Jones paying to the
Pits, &c., within six calendar months, &c., at such time and place, &c.,
the Pits re-assign the premises comprised in the said indenture of
mortgage of the 28th October, 1869, free and clear, &c., and deliver
up upon oath the said lease of the 8th November, 1862, and all other
deeds, &c. But in default, &c., the Deft is from thenceforth to stand
absolutely debarred and foreclosed, &c. Declare that in case of such
default the Pits will be entitled to the said leasehold house and
premises, free and clear of and from all right and equity of redemp-
tion of, in, and to the same, and to have an assignment accordingly.
And in that case Let the Deft' Jones execute such assignment thereof
to the Pits (to be settled by the judge in case the parties differ). —
Liberty to apply. Gocks v. Jones (V.-C. S.), Mar. 10, 1871.
Deposit of Deeds — Sale.
Declare that the Pits are entitled, by virtue of the deposit of the
title deeds and agreements relating to the same, to an equitable lien or
mortgage upon the messuages, &c., therein mentioned, for the sum of
£ — and interest, &c.
Let an account be taken of what is due to the Pits for principal,
interest, and costs of suit (such costs to be taxed, &c.) Upon the
Defts paying, &c., within six calendar months, &c., Let the Pits
deliver up, &c. But in default of such payment, Let the said messuages,
or a sufiioient part thereof, be sold with the approbation of the judges.
Let the money to arise by such sale be paid into Court to the credit
of this cause, and be applied in payment of what shall be certified to
be due to the Pits for principal, interest, and costs as aforesaid.
Adjourn further consideration. — Liberty to apply.
Deposit of Deeds — Infants — Sale.
Let an account be taken of what is due to the Pit for principal
and interest on the deposit of title deeds, and in respect of the agree-
ments in the Pit's bill mentioned, and for his costs of this suit (such
costs to be taxed, &c.).
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384 MOETGAGES.
Upon the Defts, some or one of them, paying, &c., witHin six:
calendar months, &c., at such time and place, &c., Let the Pit deliver
up, &c., to such of the Defts as shall redeem, or as they shall appoint,
free from incumbrances, &c. And it appearing by the affidavit of the
Deft Jane Bryson, the administratrix of the estate and effects of
James Bryson, that it will be for the benefit of the infant Defts that
an immediate sale of the premises hereinafter mentioned should be
made. Let the messuages, lands, and premises comprised in the said
securities be sold with the approbation of the judge. Let the money
to arise by such sale be paid into Court to the credit of, &c., and be
applied in payment of what shall be cei-tified to be due for principal,
interest, and costs as aforesaid. Adjourn further consideration. —
Liberty to apply. Bailey v. Bryson (V.-C. K.), Dec. 26, 1863.
Deposit of Deeds — Further Advances — Security good as against Settlement
— Inquiry as to Deeds deposited — Account.
It appearing that sums exceeding £4000 were between the 16tb
April, 1841 (date of deposit and of first advance), and the 26th April,
1841, both inclusive, advanced by the Pit to John Knowles, or to John
Knowles & Co. at the request of John Knowles, upon an agreement
for a security on the property comprised in certain deeds, &c., depo-
sited with the Pit on the 16th April, 1841. Declare, that the Pit
became equitable mortgagee for £4000, and interest upon the property
comprised in those deeds. Let an inquiry be made what the deeds
were which were so deposited on the 16th April, 1841, and what was the
property therein comprised. Let an account be taken of what is due
for principal and interest at £5 per cent, in respect of the £4000.
And it being alleged [admitted] by all parties that the property com-
prised in the indenture of settlement, dated the 15th April, 1837, is the
same property as that comprised in the deeds deposited on the 16th
April, 1841, Declare such deposit effectual against the said settlement.
The decree to be without prejudice to any question between the co-
Defts. An account of all the dealings and transactions between the
Pit and the house of John Knowles & Co. up to the time of the bank-
ruptcy, and of all the securities held by the Pit, and the mode in which
the same were dealt with, and what he has received in respect thereof,
and what, if anything, is now due to the Pit from John Knowles &
Co., distinguishing the amount secured by the deposit. Ede v. Knowles,
2 Y. & C. Ch. 180.
Payment of Fund in Court on Account — Costs added to Debt.
Let the £3429 7a. id. cash in Court on the credit of this cause, and
Ex parte the " Equitable Claim of the Royal Bj itish Bank," be paid to
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MORTGAGES. 385
Eichard Paddison, the secretary and solicitor of the Petitioners, the
Eoyal British Bank, on account and in part discharge of the claim
of the Petitioners under the memorandum of the 1st August, 1860, in
the petition mentioned. Let the Petitioners' costs of this application
be added to the debt remaining due to them, as in the petition men-
tioned, after giving credit for the said sum of £3429 7s. 4d. (such costs
to be taxed, &o.). Let the costs of the Pit and of the Deft Elizabeth
MuUins be costs in the cause. Ferris v. Mullins, 2 Sm. & G. 378.
Absence of Stipulation as to Interest — Interest at 4 per cent. — Trustee
Act, 1850.
Declare that the Petitioner is entitled to the £300 and advances for
premiums v\dth interest at £4 per cent, on such sums from the date of
the respective advances ; and Let the said principal sums and interest
(the amount to be verified by affidavit, or in case of difference to
be ascertained by account in chambers) be paid to the Petitioner out
of the fund in Court.
Tax the costs of all parties ; those of the trustees as between solicitor
and client (not including charges and expenses), and pay the same out
of the same fund. Balance to be paid to legal personal representatives
of John Kerr. In re Kerr's Policy, L. E. 8 Eq. 831, 337.
Shares in Mine — Partnership — Foreclosure — Account.
An account of what is due to the Pit for principal and interest upon
the five sixty-fourth shares in the South Hilton Coal Company assigned
to Thos. Eawsthorne by the indenture dated the 13th August, 1837,
in the pleadings mentioned, and for costs of suit [such costs to be
taxed, &c.]. Let, upon the Deft Matthew Eorster paying, &c., within
six calendar months, &c., the Pit assign to the Deft Matthew Eorster,
or to whom he shall direct, all her right and interest in the said five
shares, free and clear, &o., and deliver up, &o. But in default, &c.,
Let the Deft Matthew Forster stand absolutely debarred and fore-
closed, &o.
And in case of such foreclosure. Let the Pit's subsequent interest be
calculated and his subsequent costs taxed. Let the Defts Burrell,
Jones, Walker, Horn, Beresford, and Forster the younger, or any of
them, be at liberty to pay to the Pit what shall be certified to be due
for principal, interest, and costs, and subsequent interest and costs as
aforesaid, within one month after the Chief Clerk should have made his
subsequent certificate, at such time and place, &c. And upon such
payment, Let the Pit assign all his right and interest in the said five
shares, free and clear, &c., and deliver up, &c., to such of the said
Defts as shall redeem the Pit, or as he or they making such payment
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386 MOETGAOES.
shall appoint. But in default of such payment, Let the following
accounts and inquiry he taken : 1. An account of the net proceeds of
the several collieries belonging to the South Hilton Coal Company
since the filing of the Pit's bills. 2. An account of the debts and
liabilities of the said company which the said company is now liable
to pay. 3. An inquiry what proportion of such debts and liabilities
as between the Pit and the other partners in the said company is
properly attributable to the five shares so subject to the Pit's in-
cumbrance. Adjourn further consideration. — Liberty to apply. Bed-
imayne v. Forster, L. E. 2 Eq. 467.
Deposit of Deeds — Receiver — Account— Conveyance.
Let a. be appointed to receive, &c. Let the said A. from time to
time pass his accounts, and pay the balances which shall be certified
to be due from him to the Pit, he by his counsel undertaking to
account for the same in the accounts hereinafter directed.
Let an account be taken of what is due to the Pit for principal and
interest in respect of his equitable mortgage in the pleadings men-
tioned, and for his costs of suit (to be taxed, &c.).
An account of the balances of the rents and profits to be paid to
the Pit as hereinbefore directed. Let the same be deducted from
what shall appear due from the Deft for such principal, interest, and
costs. Let, upon the Deft paying to the Pit what shall be certified,
&c., within six calendar months, &c., at such time and place, &c., the
Pit deliver up all deeds, &o. But in default of such payment within
the time aforesaid. Let the Deft convey, &c. Greswick v. Harrison,
1852, A. 805 ; Setou, 444.
Eqihtablb Mortgage — Creation oj — Belief.
An equitable mortgage may be created by a mere deposit with intent to
create a security, of deeds, court rolls, or other documents of title: Ex parte
Kensington, 2 Ves. & B. 83 ; Hankey v. Vernon, 2 Cox, 12 ; Ex parte Warner,
19 Ves. 202.
It is not necessary that the deeds should shew a good title in the depositor :
Soberts v. Groft, 24 Beav. 223 ; 3 De G. & J. 1.
The intent to create the security may be established by written documents,
alone, or coupled with parol evidence; by parol evidence only that the deposit
was made by way of security ; or by the mere infereace of an agreement drawn
from the very fact of the deposit : Fisher, 32 ; Featherstone v. Fenmck, 1 Bro.
0. 0. 270, n. ; Ex parte Mountford, 14 Ves. 606 ; Ex parte Wriglit, 19 Ves.
258.
But possession by a solicitor of his cUent's securities does not raise the inference
that they are held in pledge for a debt : Boxon v. Williams, 2 Y. & J. 150.
Where the pit fails at the hearing in establishing evidtenoe of the security
being deposited, the Court will refuse an inquiry into a fact which is the founda^
tion of the Pit's title : Holden v. Hearn, 1 Beav. 445.
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MORTGAGES. 387
Where, however, upon the application of an equitable mortgagee for the usual
order for a sale of his security, it appeared that the space of time between the
alleged deposit and the issuing of a fiat in bankruptcy against the depositor was
very short, and the evidence of the petitioner unsatisfactory, the Court has
ordered an inquiry into the nature of the transaction : Ex parte Olouten, 7 Jur.
135.
'A good equitable mortgage may be created, although the deposit of the
securities agreed upon may not have been perfected : Ferris v. Mullins, 7 Jur.
136 ; 2 Sm, & G. 378 ; Order,' p. 384.
An agreement to deposit a lease when granted will, create a good equitable
mortgage if there be no question of the bona fides of the agreement : Fisher, vol. i.,
p. 34, citing JEx parte Orrett, 3 M. & A. 153 ; Ex parte Smith, Be EiMyard, 2
M. D. & De G. 587.
But a parol agreement to deposit a lease when granted, and as security for a
sum advanced, does not constitute an equitable mortgage : 4 Madd. 249 ; Ex'
parU Halifax, 2 M. D. & De G. 544.
An equitable mortgage by deposit of deeds will be held to cover future ad-
vances upon parol evidence that they were made iTpon that security : Ex parte
Langston, 17 Ves. 227 ; Ede v. Knowles, 2 Y. & C. Ch. 172 ; Ex parte Nettleship,
2 M. D. & De G. 124.
A delivery of deeds to be held until the execution of a mortgage, or a final
settlement by the debtor, amounts to an equitable charge : Lloyd v. Attwood, 3
De G. & J. 614 ; 5 Jur. (N.S.) 1322 ; Femuick v. Potts, 8 De G. M. & G. 506.
Where money has been paid into Court by a second mortgagee in order to
obtain an order for sale under 15 & 16 Vict. o. 86, s. 48, it was held to be appli-
cable to indemnify the first mortgagee for his costs in an abortive attempt to
sell : CorselUs v. Patman, L. R. 4 Eq. 156.
The deposit of title deeds being evidence of an agreement for a mortgage, and
an equitable title to a mortgage being in equity as good as a legal mortgage {Ex
parte Wright, 19 Ves. 255, per Lord Eldon), the remedy should correspond as
nearly as may be with that of legal mortgages : Parher v. Housefield, 2 M. & K.
421.
The Court has power to decree either foreclosure or sale : ParTcer v. Housefield,
2 M. & K. 421 ; Footner v. Sturgis, 5 De G. & Sm. 736.
But the present relief given to an equitable mortgagee by deposit of deeds
is foreclosure not sale : James v. James, L. R. 16 Bq. 153 ; Order, p. 381, fol-
lowing Bryce v. Bury, 2 Drew. 41 ; Order, p. 381.
Foreclosure, and not sale, is the remedy of an equitable mortgagee of a
share in a mining partnership : Bedmayne v. Forster, L. R. 2 Eq. 467 ; Order,
p. 385.
As between equitable incumbrancers, relief will be given to the incumbrancer
prior in point of date, unless he has lost his priority by some act of negligence or
omission : Bice v. Bice, 2 Drew. 73 ; Lacon v. Allen, 3 Drew. 579 ; Boherts v.
Croft, 2 De G. & J. 1 ; Booper v. Harrison, 2 K. & J. 86 ; Stochhouse v. Countess
of Jersey, IJ. & H. 721 ; Thorpe v. Boldsworth, L. R. 7 Eq. 139.
But in deciding questions of priority between equitable mortgagees, on the
ground of negligence or omission on the part of any of them, the Court if satisfied
of the good faith of the person holding the prior charge, and that there has been
a positive statement honestly believed that he has got the necessary deeds, does
not bind him to their examintion, nor by constructive notice of their actual con-
2 c 2
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388 MOETGAGBS.
tents : Hunt v. Elmes, 2 De Gr. P. &"J. 578 ; Eewitt v. Lonsemore, 9 Have, 449 ;
Gory V. Eyre, 1 Be G. J. & S. 149; Colyer v. Finch, 5 H. L. 0. 905 ; Dixon v.
MucMeston, L. E. 8 Ch. 155.
JUDGMENT OEEniTOES.
Suit by Judgment Creditor — Inquiries.
Let an inquiry be made what lands, tenements, rectories, advowsons,
tithes, rents, and hereditaments, including lands and hereditaments of
copyhold or customary tenure, the Deft B. was at the time of enter-
ing up the judgment of the 19th February, 1851, by the Pit against
the said Deft B. as in the Pit's bill mentioned, or at any time since or
is now seised of or possessed of or entitled to for any estate or interest
whatever at law or in equity, whether in possession, reversion, re-
mainder, or expectancy, or over which the said Deft B., at the time of
entering up such judgment or at any time since had, or over which
he now has, any disposing power which he might without the assent
of any other person exercise for his own benefit. 2. An inquiry what,
if any, incumbrances, affect such lands, tenements, and hereditaments,
and what are their priorities. 3. An account of what is due in respect
of such incumbrances.- — 4, 5. Inquiries as to Defts in possession ; and
if in possession an account of rents. — Adjourn further consideration.
Parsons v. Beehee (M. E.), Jan. 19, 1855 ; Seton, 454.
Judgment Creditor in Possession by Elegit — Inquiries and Accounts.
Inquiries (1) of what the hereditaments in the pleadings mentioned
consist. — Inquiries (2, 3, 4) as to incumbrances, their priorities, and
what is due thereon respectively. — By consent an inquiry whether
there is any and what lien subsisting in favour of the Deft M. on the
title deeds relating to the said hereditaments, not being a charge
or incumbrance thereon. And the Pit by his counsel submitting to
account as mortgagee in possession (6) an account of what Pit has
received, &c., on account of the said hereditaments since the same were'
extended to him by the sheriff of — under the requisition returned by
the said sheriff in pursuance of the writs of elegit issued out of and
under the seal of the Court of Common Pleas as in the pleadings
mentioned, or which without his wilful default might have been
received. (6) An account of what Pit has laid out in substantial
repairs, amount to be deducted. — Adjourn further consideration. Bull
V. Falkner, 1 De G. & Sm. 688 ; Seton, 455.
Suit by Judgment Creditor — Inquiries — Successive Foreclosures.
Declare that under and by virtue of the judgment entered up by —
in the pleadings mentioned against the Deft H. on the — day of
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MOBTGAaSS. 389
the Pit is entitled in respect of the amounts thereby intended to he
secured, with interest thereon at the rate, &c., from, &c,, to a charge
upon all the freehold, copyhold, or customary and leasehold estates
and hereditaments of or to which the Deft H. at the time of entering
up the said judgment was, or any time afterwards has become, seised,
possessed of, or entitled to for any estate or interest at law or in
equity. Let an inquiry be made what freehold, copyhold, or custom-
ary and leasehold estate the Deft H. at the time, &c., was, &c., for any
estate or interest at law or in equity. Let an account be taken of
what is due to the Pit for principal and interest on his judgment, and
for his costs of suit, to be taxed, &o., including the costs of register-
ing the said judgment, and any costs, charges, and expenses properly
incurred relating to the said security beyond the Pit's cost of suit.
Let, upon the Defts F. and Gr., or either of them, paying to the Pit
within, &c., at such time, &c., what shall be certified, &c., the Pit
assign the said judgment dated, &c., to such of the said Defendants as
shall redeem the premises, and deliver up on oath all deeds, &o. But
in default Let the Defts P. and Gr. be foreclosed. And in case of such
foreclosure Let the Pit's subsequent interest be computed and his sub-
sequent costs of suit taxed, &c. Let, upon the Deft J. [judgment
creditor] paying, &c., within three calendar months, &c., the Pit
assign, &c. In default foreclosure. — Similar directions as to subse-
quent incumbrances. — In case Defts F. and Gr. shall redeem the Pit,
Let an account be taken of what is due to them for principal, interest,
&o., and for costs, &c. — Similar directions for subsequent incumbrancers
to redeem Defts F. and Gr. Bates v. Hillcoat (M.E.), June 4, 1852;
Seton, 454.
Suit ly Mortgagee — Judgment Creditors Defts.
Directions for di.«missal of bill without costs as against Defts who
had not issued execution and who had disclaimed — and without costs
against others. — Let an account be taken of what is due to the Pits
under their mortgage, and for their costs, &c., including what the Pits
shall have paid for Defts' costs, to be taxed, &c. Let upon the Defts
ot some or one of them paying to the Pits what shall be certified to be
due within six months, &c., the Pits convey, &c., and deliver up., &c.,
to the Defts, or to such of them as shall redeem the Pits. In default
of the Defts or any of them paying, &c., Ldt the Defts stand fore-
closed, &c. — Liberty to apply. Earl of OorJc v. Bussell, L. E. 13 Eq.
210.
Suit by Judgment Creditor — Receiver — Account — Sale.
Let a proper person be appointed to receive the rents and profits, &o.,
but without prejudice to the right of any prior incumbrancer, and if any
prior incumbrancer is in possession then without prejudice to such
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390 MORTGAGES.
possession. And the tenants of the said real estate are (subject as afore-
said) to attorn and pay their rents, &o. — Eeceiver to pass his acconnts
and pay his balances into Court. — Let an account be taken of what
is due to the Pit under and by virtue of his judgments at law in the
pleadings mentioned, and for his costs of suit, to be taxed, &c. Upon
the Defts or either of them paying to the Pit what shall be certified to
be due within six calendar months, &c., then, in the event of such
payment being made by Deft J. J., the Pit to assign his said judgment
to the Deft J. J. ; but in the event of such payment being made by the
Deft C. J. K. [an equitable life tenant] the P]t to enter up satisfaction
on his said judgments. In default of the Defts or either of them pay-
ing to the Pit what shall be certified to be due by the time aforesaid
the interest of the Deft C. J. K. of and in the said real estate to be
sold with the approbation of the judge. — Money to be paid into Court.
— Further consideration reserved. — Liberty to apply. Wells v. Kilpin
(M. E.), L. E. ]8Eq. 298.
Judgment Creditoks.
Prior to the 1 & 2 Vict. o. 110, a judgment creditor could have no foreclosure.
But subsequently to the Act decrees have been made for foreclosure at the suit
of judgment creditors: Ford v. Wastell, 6 Hare, 229 ; Jones v. Bailey, 17 Beav.
582.
Judgment creditors acquire a specific charge upon all lands, , tenements, rec-
tories, advowsons, tithes, rents, and hereditaments, including copyhold or cus-
tomary lands of or to which the person against whom judgment is entered up
shall at the time of entering up thereof, or at any time after, be seised, possessed,
or entitled, for any estate or interest at law or in equity : 1 & 2 Vict. c. 110, s. l.S.
But no judgment creditor is entitled under that Act to proceed in equity to
obtain the benefit of his charge until after the expiration of one year from the
entering up of his judgment : Ibid.
This period of one year is only applicable to the entering up, and not to the
registration of the judgment : Derbyshire Railway Company v. Bamhrigge, 15
Beav. 146.
The operation of judgments against purchasers and mortgagees is also restricted
by the 18 & 19 Vict. c. 15, s. 11, and 23 & 24 Vict. c. 38, s. 1.
It has been held that the statute 1 & 2 Vict. c. 110, confers upon the judgment
creditor an equitable estate, and, by giving him the same remedy as if the debtor
had signed a memorandum, makes him an equitable mortgagee : Rollesfon v.
MoHon, 1 Dr. & War. 171, 195 ; Ex parte BoyU, 3 De G. M. & G. 530 ; 17 Jur.
981 ; Fisher, vol. i., p. 522.
Where the property bound by the judgment consisted of a railway, the Court
would not make an order either for the sale of the property or for foreclosure, but
in such undertakings limits the remedy to the appointment of a receiver of the
tolls and profits : Furness v. Oaterham By. Co., 25 Beav. 614.
And every creditor to Yhom any land of his debtor shall have been actually
delivered in execution by virtue of any judgment, statute, or recognizance, and
whose writ or other process of execution shall be duly registered, shall be entitled
forthwith, or at any time afterwards, while the registry of such writ or process
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MOETGAGES. 391
shall continue in foree, to obtain from the Court of Chancery, upon petition in a
summary way, an order for the s^le of his debtor's interest : 27 & 28 Vict. c. 112,
s. 4.
No judgment (which includes orders of Courts of equity and bankruptcy),
statute, or recognizance, to be entered up after 29th July, 1864, is to affect
any land (including corporeal and incorporeal hereditaments) until the land shall
have been actually delivered in execution by virtue of a writ of elegit, or other
lawful process : 27 & 28 Vict. c. 112, s. 1.
Judgment creditors of a mortgagor, whose judgment did not affect the mort-
gaged land at the date of the decree in a foreclosure suit, have been held entitled
to redeem if they acquired a charge on the land by issuing writs of elegit, and
obtaining a return from the sheriff within six months from the date of the decree :
Mildred v. Austin, L. E. 8 Bq. 299 ; but see Lord Cork v. Russell, L. B. 13
Eq. 210.
If a judgment creditor, who has sued out an elegit, is imable to obtain delivery
by the sheriff of his debtor's lands, the order of the Court of Chancery will be a
delivery in execution vrithin the 27 & 28 Vict. c. 112 : Hatton v. Haywood, L. E.
9 Ch. 229.
And in a suit against mortgagees and a mortgagor who was also a judgment
debtor, by a judgment creditor who had issued a writ of elegit, but the execution
of which could not be proceeded with in consequence of the mortgages, the ordi-
nary redemption and foreclosure decree was made notwithstanding the 27 & 28
Vict. c. 112 : Beckett v. Buckley, L. E. 17 Bq. 435 ; Order, p. 416.
And a judgment creditor who, for similar reasons, is unable to obtain delivery
by the sheriff of the debtor's lands, is not bound to redeem the prior incumbrances,
but may obtain a decree for the appointment of a receiver and a sale in a suit to
which the debtor and subsequent incumbrancers only are parties : Wells v. Kilpin,
L. E. 18 Eq. 298 ; Order, p. 389.
TACKING.
Mortgage to A. ; secondly, to B. ; thirdly, to G. (the Pit), who obtains
transfer of Mortgage to A. and excludes B.
Decjlare that the Pit's mortgage security, dated 5th March, 1851,
has priority over the mortgage security of the Deft, I. M., dated the
31st March, 1848. Let the following accounts and inquiries he taken
and made : —
An account of what is due to the Pit J. S. for principal and interest
under his securities of the 3rd Fehruary, 1846, and 5th March, 1851,
and for costs, &c., to be taxed, including costs of attempted sales. An
inquiry as to occupation rent to he charged to the Pit. An account
of what is due to Deft H. for principal and interest on his equitable
security, and for costs, &o. An account of money due to Deft I. M.
for principal and interest on his security of the 31st of March, 1848, and
for costs, &c. Let the mortgaged premises be sold with the approba-
tion of the judge ; the sale moneys to be paid into Court to the credit
of cause " Proceeds of sale," &o. Adjourn further consideration, &c.
Spencer v. Pearson, 24 Beav. 266.
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392 MORTGAGES.
Tcuiking — Deft Mortgagee under false Title, and Purchaser for valuable
Consideration without Notice of Fraud.
Let an account be taken of what is due to the Deft in respect of
all sums of money advanced by him upon the security of the premises
comprised in the indentures of the 21st and 22nd December, 1800, and
up to and inclusive of 10th January, 1825. — Tax Deft so much of
costs of suit as relates to redemption of the premises comprised in
the said indenture. — Account of rents and profits received by John
Powles in his lifetime. — If annual rents and profits exceed interest
rests to be made. — Tax Pits their costs of suit so far as the same have
been occasioned by the Defts having denied the forgery of the will of
John Jones, and also Pits' 'costs of action of ejectment, so far as the
same relate to the same matter, to be deducted from amount due to
Deft for principal and interest and costs. Upon Pit paying to Deft the
balance within six calendar months, &c.. Deft to convey and assign
premises comprised in the said indentures, free and clear, &o., and
deliver up, &c. — In default of payment Pit's bill to be dismissed with
costs, so far as the same is a suit for redemption. — Pits to be at liberty
to issue execution as to land recovered in ejectment not included in
the indentures of 21st and 22nd December, 1800. — Liberty to apply.
Jones V. Powles, 3 My. & K. 581.
Tacking.
A prior legal mortgagee, by annexing to his original security another which he
holds for a subsequent debt, or an incumbrancer subsequent to the second, by
getting in a prior legal security, has had imder certain circumstances (and prior to
the Vendor and Purchaser Act, 1874) the power to postpone the rights of mesne
inoumbi-ancers : Fisher, vol. li., p. 649.
By the Vendor and Purchaser Act, 1B74 (37 & 38 Vict. c. 78), s. 7, " no
priority or protection shall be given or allowed to any estate, right, or interest
in land, by reason of such estate, right, or interest being protected by or tacked
to any legal or other estate or interest in such land ; and full effect shall be
given in every Court to this provision, although the person claiming such priority
or protection as aforesaid shall claim as a purchaser for valuable consideration
and without notice : Provided always, that this section shall not take away from
any estate, right, title, or interest, any priority or protection vfhich but for this
section would have been given or allowed thereto as against any estate or
interest existing before the commencement of this Act." But this section is now
repealed by 38 & 39 Vict. o. 87, s. 129 : see p. 741.
It has been essential to the right to tack, either that the debt should have been
originally contracted on the credit of the estate, or that a specific security should
have been taken for it before the title of the subsequent incumbrancer accrued :
Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Ex parte Knott, 11 Ves. t>09.
Thus, a judgment creditor prior to 1 & 2 Vict. c. 110, buying in the first
mortgage upon an estate, there being a mesne mortgage, was held not entitled to
tack, his judgment debt not having been advanced upon the credit of the estate :
Jirace v. Duchess of Marlborough, supra.
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MOETaAGES. 393
But debts which form a Men upon the estate, as debts by mortgage and further
charge ; and judgment debts when advanced upon the credit of the estate, have
been tacked against the mortgagor, his sureties, and all others claiming under him,
including mesne incumbrances : Brace v. Duchess of Marlborough, 2 P. Wms.
494 ; £arnett v. Weston, 12 Ves. 130 ; Ex parte Cox, 2 M. D. & De G. 486.
And an equitable mortgagee has protected his security by getting in a prior legal
incumbrancer : Ooddard v. Complin, 1 Ch. Ca. 119.
The right to tack also depended upon the possession of, or dominion over, a prior
legal interest.
But actual possession was not always necessary. Thus, the custody of deeds
creating a term, accompanied by a declaration of the trust of it in favour of a
second incumbrancer, without notice of the prior mortgage, has been held to give
priority over the first incumbrancer : Stanhope v. Mtrl Verney, 2 Eden, 81.
The prior mortgagee, when he acquired the subsequent security, and the puisne
incumbrancer, when he originally lent his money, must be without notice of the
incumbrance which by virtue of the legal estate he claimed to postpone : Fisher,
661 ; Morret v. Paske, 2 Atk. 52 ; Wilhughly v. Will<mghhy, 1 T. E,. 763 ; Shep-
herd V. Titley, 2 Atk. 348 ; Siles v. Moore, 15 Beav. 181.
If a third mortgagee advance money upon a transfer of the first without notice
of the second, he will have priority over the second, though the latter, upon
taking his security gave notice to the first : Peacocke v. Burt, 4 L. J. (N.S.)
(Ch.) 33 ; Coote, Mort. 655.
And where the third mortgagee, who had originally made his advance without
notice of the second mortgagee, afterwards acqtiired that knowledge and procured
a transfer of the first mortgage, he was held entitled to tack : Spencer v. Pearson,
24 Beav. 266 : Order, p. 391.
Where a mortgagee had the legal estate and made a further advance, and had
no notice of any claim adverse to his title, being a purchaser for valuable con-
sideration, he was entitled to tack the further advance to his original mortgage,
notwithstanding fraud on the part of the mortgagor : Jones v. Powles, 3 My. &K.
581 ; Order, p. 392 ; Toung v. Toung, L. B. 3 Eq. 801.
A mortgagee whose mortgage was satisfied has been protected against a prior
incumbrancer, provided the party conveying the legal estate has no notice of the
prior incumbrance : Carter v. Carter, 3 K. & J. 617.
A prior mortgagee could not tack a subsequent debt taken inpendente lite : Mor-
ret V. Paske, 2 Atk. 53.
But a puisne incumbrancer might have tacked a prior security so taken in if
taken in before a decree has been made to account : March v. Lee, 1 Oh. Ca. 162 ;
Brace v. Duchess of Marlborough, 2 P. Wms. 490.
Debts which are not a lien upon the mortgaged property might not have been
tacked either against the mortgagor himself or any persons claiming vmder him,
except those who have become liable in respect of their possession of the mort-
gaged property, to the payment of such debts. Fisher, vol. ii., p. 666.
CONSOLIDATION OF MORTGAGES.
Pit Mortgagee by original Deeds and Deeds of Transfer on distinct Pro-
perties— Equity of Redemption in part sold to Purchasers previously to
the whole becoming vested in Pit — Bedemption by Defts as to all.
Declare that the Defts Silson, Standish, Addis, Lawson, and Thomas
are not, nor is any one of them, entitled to redeem any of the mort-
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394 MORTGAGES.
gaged premises comprised in the indentures dated respectively, &c.,
until payment be made to the Pit of what on taking the account
hereinafter directed shall be found due to him for principal and interest
on all the said mortgages.
Let an account be taken of what is due, &c., to the Pit, and for
costs, &c. Upon. Deft Silson paying within six calendar months, &c..
Pit to assign. In default of payment Silson to be foreclosed. In case
of such foreclosure subsequent interest to be calculated, and subse-
quent costs taxed. Upon Deft Addis paying within three calendar
months Pit to assign. In default Deft Addis to be foreclosed. In case
of such foreclosure subsequent interest to be calculated and subsequent
costs taxed. Upon payment by Deft Standish within three months,
&c., Pit to assign. In default of payment Standish to be foreclosed.
In case of such foreclosure Let subsequent interest be calculated and
subsequent costs taxed. Upon Defts Thomas and Lawson, or either of
them, paying within three calendar months, &c.. Pit to assign to such
one of them as shall redeem the Pit, the assignment to be without
prejudice to the rights and equities of the said Defts as between them-
selves in respect of the mortgaged premises. In default of payment
Thomas and Lawson to be foreclosed.
In case Deft Silson shall redeem the Pit, subsequent interest to be
computed on what Silson shall have paid to Pit, and an account of
what is due to Deft Silson for costs (to be taxed, &c.). Upon Deft
Addis paying, Silson to assign. In default of payment Addis to be
foreclosed.
In case of such foreclosure subsequent interest to be calculated on
what Deft Silson shall have paid to Pit, and subsequent costs taxed.
Upon Deft Standish paying, Deft Silson to assign. In default of pay-
ment Standish to be foreclosed. In case of such foreclosure subse-
quent interest to be calculated on what Deft Silson shall have paid
Pit, and subsequent costs taxed. Upon Defts Thomas and Lawson, or
either of them, paying. Deft Silson to assign, &c., and deliver up, &c.
In default of payment Defts Thomas and Lawson to be foreclosed.
In case Deft Addis shall redeem the Pit, subsequent interest to be
calculated and subsequent costs taxed. Upon Deft Standish paying
the Deft Addis what he shall have paid the Pit and what shall be due
to Deft Addis for subsequent interest and costs, Deft Addis to assign
to Deft Standish, and deliver up, &o. In default of payment Deft
Standish to be foreclosed. In case of such foreclosure subsequent
interest to be computed on what Deft Addis shall have paid to the Pit,
and Deft Addis' subsequent costs taxed. Upon Defts Thomas and
Lawson, or either of them, paying, &c., Deft Addis to assign, &c., and
deliver up, &o. In default of payment Defts Thomas and Lawson to
be foreclosed.
In case Deft Standish shall redeem the Pit, Deft Standish's sub-
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MORTGAGES. 395
sequent interest to he calculated and subsequent costs taxed. Upon
Defts Thomas and Lawson, or either of them, paying, Standish to
assign, &c., and deliver up, &o. In default of payment Thomas and
Lawson to be foreclosed.
But in case Deft Addis shall redeem Deft Silson subsequent interest
of Addis to be calculated and subsequent costs taxed. Upon Deft
Standish paying to Deft Addis what he shall have paid Deft Silson,
and what shall be due to Deft Addis for subsequent interest and costs
Deft Addis to assign to Deft Standish. In default of payment Standish
to be foreclosed. In case of such foreclosure subsequent interest to
be computed on what Deft Addis shall have paid Deft Silson, and
subsequent costs taxed. Upon Defts Thomas and Lawson, or either
of them, paying. Deft Addis to assign. In default of payment Thomas
and Lawson to be foreclosed.
But in case Deft Standish shall redeem Deft Silson, subsequent
interest to be calculated and subsequent costs taxed. Upon either of
Defts Thomas and Lawson paying, Silson to assign, &c.;- and deliver
up, &o. In default of payment Thomas and Lawson to be foreclosed.
But in case Deft Standish redeem Deft Addis, Deft Standish's subse-
quent interest to be computed and subsequent costs taxed. Upon either
of Defts Thomas and Lawson paying, Deft Standish to assign, &c., and
deliver up, &c. In default Defts Thomas and Lawson to be foreclosed.
And in case the parties differ about the form of any assignment to
be made in pursuance of the directions aforesaid. Let the same be
settled by the judge. And in the event of the Defts Thomas and
Lawson redeeming the Pits, or any one of the Defts Silson, Addis,
and Standish, the said Defts Thomas and Lawson to be at liberty to
apply to this Court or at chambers, as they may be advised, without
notice to the Pit or the Defts Silson, Addis, and Standish. Beevor v.
Luch, L. E. 4 Eq. 537.
Pit Transferee of two separate Mortgages on distinct Estates — Second
Mortgagee and Mortgagor to redeem the Whole.
Account of what is due to the Pits for principal and interest by
virtue of his two mortgage securities, dated &c., and for costs, &c.
Account of sums laid out in repairs — amount to be added — account
of rents, &c., amount to be deducted.
And upon the Deft Lee paying to Pits the balance, &o., within six
months, &c., the said Pits to convey. In default Deft Lee to be
foreclosed. In case of such foreclosure Pits' subsequent interest to be
calculated and subsequent costs taxed. Upon payment by Defts
Padgett and wife Pits to convey. In default Padgett and wife to be
foreclosed.
But in case Deft Lee shall redeem, an account of the principal, inte-
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396 MOETGAGES.
rest, and subsequent interest and costs due to the said Deft. Upon
Defts Padgett and wife paying tlie amount paid by Deft Lee, and
amount certified to be due to him, Deft Lee to re-convey. Li default
Defts Padgett and wife to be foreclosed. — Liberty to apply in cham-
bers as to a sale. Vint v. Padgett, 1 Griff. 446 ; 2 De G. & J. 611.
Consolidation of Mortgages.
If the owner of different estates mortgage them to one person separately, for
distinct debts, or successively to secure the same debt, or the same debt with
further advances, the mortgagee may insist that one security shall not be redeemed
alone : Shvttleworth v. Laycoch, 1 Vern. 245 ; Pope v. Onslow, 2 Vem. 286, cited
in Fisher, vol. ii., p. 678.
The right enables a mortgagee to unite and hold united securities on different
estates until payment of the debts charged on both of them — to make one estate
liable for a debt specifically charged on another : Ibid.
The mortgagee has a right to the benefit of this rule though the securities be
made to trustees : Tassell v. Smith, 2 De Gr. & J. 713 ; 4 Jur. (N.S.) 1090. And
the securities may be united if the mortgages be made to different mortgagees,
one of whom takes an assignment from the other of his security : Tweeddale v.
Tweeddale, 33 Beav. 341 ; Vint v. Padgett, 1 Giff. 446 ; 2 De G. & J. 611. But
see Baker v. Gray, h. R. 1 Oh. D. 491.
Where two mortgages of different estates are assigned to one mortgagee as a
security for one gross sum the purchaser of the equity of redemption of both
estates cannot redeem one without redeeming the other : Vint v. Padgett, supra.
The right of the mortgagee is not affected by reason of his selling one of the
estates under his power : Selby v. Pom/ret, 1 J. & H. 336.; 7 Jur. (N.S.) 836.
Nor is the right of the mortgagee limited to cases in which both the mortgages
are legal securities. A mere equitable interest will enable the mortgagee to hold
them both : Watts v. Symes, 16 Sim. 640 ; 1 De G. M. & G. 240 ; Neve v.
Pennell, 2 H. & M. 170.
The incumbrancer is entitled to unite securities of different natures as an
assignment of equitable personalty with a mortgage upon freeholds and lease-
holds : Watts V. Symes, 16 Sim. 640 ; 1 De G. M. & G. 240.
The right of the mortgagee to be redeemed as to the whole of his securities
applies whether the suit is for foreclosure or redemption : Watts v. Symes, 1 De
G. M. & G. 240 ; Selby v. Pom/ret, 7 Jur. (N.S.) 836, 860.
Nor will the purchaser of an equity of redemption from the mortgagor be per-
mitted to redeem his estate without also redeeming all other mortgages by the same
mortgagor, whether the union of the securities in the mortgagee has occurred
before or since the purchase, and whether the purchaser may or may not have had
notice of the existence of the other mortgages : Beewr v. Luck, L. E. 4 Eq. 537 ^
Order, p. 393.
Where such mortgages have been consolidated by a mortgagee, and the mort-
gagor has conveyed the equity of redemption in some of the properties to purchasers
by deeds of various dates, in a foreclosure suit by the mortgagee, a first right of re-
deeming all the mortgages will be given to the first purchaser of part in point of
date, with successive rights of redemption, in default, to subsequent purchasers,
as in case of first, second, and third mortgagees : S. 0.
Seous, where the owner of the equity of redemption, though of different priori-
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MOETGAGBS. 397
ties as to the period of tlieir enjoyment, come in under the same instrument ; as
for example, tenant for life and remainderman under a settlement : S. 0.
MARSHALLING SBCUEITIES.
If the owner of two estates mortgage them both to one person, and then one of
them to another without notice, the second mortgagee may insist that the debt
of the first shall be satisfied out of the estate not mortgaged to the second, so far
as that will extend : Fisher, vol. ii., p. 760 ; Lanoy v. Duhe of Atholl, 2 Atk.
444 ; Aldrich v. Cooper, 8 Yes. 381 ; Tidd v. Lister, 10 Hare, 140, 157 ; 3 De G.
M. & G. 861 ; Gibaon v. Seagrim, 20 Beav. 614.
But if two estates are mortgaged to A., and one is afterwards mortgaged to B.,
and the remaining estate is afterwards mortgaged to G., B. has no equity to throw
the whole of A.'s mortgage on O.'s estate, and so destroy O.'s security : Aldrich
V. Cooper, 8 Ves. 38'3 ; Order, p. 205 ; Bugden v. Bignold, 2 Y. & 0. Ch. 377.
In ordinary cases, therefore, where there are several incumbrancers, the Court
will throw the debt of the mortgagee secured by two estates upon both those estates
rateably according to their value, leaving the residue of each to satisfy the subse-
quent incumbrancer to whom it was specifically mortgaged : Barnes v. Booster,
1 Y. & C. 401 ; Order, p. 205 ; Bugden v. Bignold, 2 Y. & 0. 377 ; Titley v.
Davis, S. 0. 399.
If, however, the third incumbrancer be only a judgment-creditor, or take his
secnrity pendente lite, and the second claimant has a declaration or covenant, that
the estate is free from incumbrances, he will be entitled to the advantage of
marshalling : Fisher, vol. ii., p. 761 ; Averall v. Wade, LI. & Goo. temp. Sugd.
252 ; G<yring v. Farrell, Beat. 472.
FOEECLOSUEES IN PAETIGULAE CASES.
Mortgages by Principal and Surety.
Account.
Let the following accounts be taken : —
1. An account of what is due to the Pit [mortgagee] for principal
and interest, &c,, and for costs of this suit (such costs to be taxed by
the taxing master. 2. An account of rents, &c., received by the Pit
and D. deceased, or either of them, or by any other person, &c. Let
what shall appear due on the last-mentioned account be deducted, &c.
Let upon the Deft M. [the principal], or the Lefts L and B. [the sure-
ties] paying to the Pits what shall be certified to be due, &c., within
six calendar months, &c., the Pit convey the mortgaged premises in
manner following, that is to say : In case the Deft M. shall redeem
the Pit as aforesaid. Let the Pit convey the hereditaments comprised
in the indenture first stated in the Pit's bill, dated, &o., free, &c.,
and deliver all deeds, &c., to the Deft M., or as he shall appoint.
And Let the Pit also convey the hereditaments comprised in the in-
denture secondly stated in the Pit's bill to the Defts L. and B., or as
they shall appoint. But in case the Defts L, and B. shall redeem the
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Pit as aforesaid, Let the Pit convey the premises comprised in each
of the' said indentures to the Defts L. and B., or as they shall appoint.
But in default of the Deft M., or the Defts L. and B., paying to the
Pit what shall be certified to he due, &c., all the said Defts are from
thenceforth to stand ahsolutely debarred and foreclosed, &c. Becket
V. MicMethwaite, 6 Madd. 199.
Account — With Provision for Bedemption as hetween Principal and Surety.
[Usual account of what is due to Pit — On payment hy mortgagor and
devisee of surety or either of them, of %11 or particular portions of the
sums secured, directions for conveyance of the two mortgaged estates
according to payment — In default foreclosure.]
If the Deft L. E. Eobiuson [the surety] shall pay the whole of the
said principal money, and interest, and costs. Let the Pit convey to her,
her heirs and assigns, &c., and deliver up, &c. And in that case Let
subsequent interest be computed upon what the Deft L. E. Eobinson
shall so pay to the Pit for principal, interest, and costs as aforesaid.
And upon the Deft Eobinson [principal] paying to the Deft L. E. Eobin-
son what she shall so pay, &e., within three months, &c., Let the Deft
L. E. Eobinson convey to the Deft Eobinson, &o., subject nevertheless
as to the hereditaments devised by the will of J. Lindsay to the Deft
L. E. Eobinson for life to her life interest therein, and subject as to all
the said hereditaments to such powers and charges as by the said will
were made or given, or which may be still subsisting unsatisfied, and
deliver up all deeds, &c.
But in default of the Deft Eobinson so paying to the Deft L. E.
Eobinson such principal, interest, and costs as aforesaid. Let the Deft
Eobinson be absolutely foreclosed, &c. Aldworth v. Bobinson, 2 Beav.
287.
A surety is entitled to redeem the estate charged, but not where the suretyship
is for another debt, or for a distinct part of the same debt, for which the first
security is given : Fisher, vol. i., p. 303 ; Ex parte Crisp, 1 Atk. 608 ; Wade v.
Cooper, 2 Sim. 155 ; Wright v. Morley, 11 Ves, 12.
MOETGAGES TO TeuSTEE.
Two Sums advanced — One hy Pits, the other hy Defts.
Let an account be taken of what is due to the Pits for principal, and
interest in respect of the sum of £ — secured by the indenture dated,
&o., and for costs, &c. (to be taxed by the taxing master). Account
of what is due to the Defts T. and W. for principal and interest in
respect of the sum of £ — secured to them by the same indenture, and
for their costs of suit, to be taxed, &c. Let upon the Deft M. paying
to the Pits what shall be certified to be due to them for principal,
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MORTGAGES. 399
interest, and costs within six calendar months, &c., and upon the said
Deft M. also paying to the Defts T. and W. what shall be certified to
be due to them for principal, interest, and costs within six calendar
months, &o., the Deft B. [the trustee] re-convey, &c. In default of
the Deft M. paying what shall be certified to be due on both accounts
the said Deft to be foreclosed, &c. In case of such foreclosure. Declare
that Deft B. is to be considered as a trustee of the mortgaged heredita-
ments for the benefit of the Pits. Bernard v. Morgan, 1822, A. 137 ;
Seton, 421.
If the equity of redemption be the property of several persons as joint tenants
or tenants in common, one of them may redeem : Waugh v. Laud, Coop. G. 130 ;
Wynne v. Styan, 2 Ph. 306.
But one cannot redeem his own moiety only : WyUie v. Lugg, 2 Eden, 78.
In Waugh v. iMud, supra, one joint tenant is said to have been allowed to
redeem his moiety alone. But this appears to have been by consent.
The mortgagee, though he be one of the trustees, has the ordinary mortgagee's
rights, and the only relief which belongs to the trustees is redemption on the
usual terms: Attorney- General v. Hardy, 1 Sim. (N.S.) 338.
A trustee who is also mortgagee will not be allowed' to foreclose : Tennant v.
Trenchard, L. R. 4 Ch. 537.
If any of the cestuis que trust object, a trustee of an estate, although also a
mortgagee, will not be allowed to bid at a sale of the estate directed by the
Court. But if the estate is not sold at the sale, the trustee may become a pur-
chaser under proposals to the Court : S. C.
Derivative Mortgages.
Common Order.
Let an account be taken of what is due to the Deft H. [origi-
nal mortgagee] for principal and interest, &c., and for costs, &c.
2. Account of rents and profit received by the said Deft (amount to
be deducted). 3. An account of what is due to the Pit [the deri-
vative mortgagee] for principal and interest on his derivative m.ort-
gage, and for costs, &c. An account of rents and profits received by
the Pit, amount to be deducted from his principal, interest, and costs.
Let upon the Deft VV. [mortgagor] paying to the Pit what shall be
certified to be due for such principal, interest, and costs, not exceeding
what shall be certified to be due to the Deft H. for principal, interest,
and costs on his mortgage, and the residue, if any, of what shall be
certified to be due on the Deft H.'s mortgage to the Deft H. within six
calendar months, &o., Let the Pit and the Deft H. re-convey, &c., and
deliver up, &o. But in default of the Deft W. paying to the Pit and
the Deft H. such principal, interest, and costs as aforesaid by the time
aforesaid, the Deft W. to be foreclosed. And in case of such fore-
closure. Let subsequent interest be computed on the Pit's derivative
mortgage, and subsequent costs taxed. Subsequent account of rents
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400 MORTGAGES.
and profits, amount to be deducted. Let, upon the Deft H. paying,
&c., the Pit re-convey, &o., and deliver up, &c. But in default the
said Deft H. is to be foreclosed. Balton v. Wilson (M. E.), May 30,
1750; Seton, 421.
Feame op Decree.
Where a security has been made subject to a derivative mortgage, the decree
directs an account of what is due to the original mortgagee or his assignee, and
then of what is due to the derivative mortgagee ; and that upon payment to the
latter of the sum due to bim, not exceeding the sum found due to the original
mortgagee, and on payment of the residue, if any, of what is due to the original
mortgagee, both of them shall re-convey. In case of default and foreclosure,
accordingly, after the computation of the subsequent interest and costs due to
the derivative mortgagee, he is ordered to re-convey, on payment of that amount
by the original mortgagee, and in default of payment the latter is foreclosed. See
form of order, supra. Fisher, vol. ii., p. 984.
INFANT'S ESTATE.
Accounts — Foreclosure.
Let an account be taken of what is due to the Pit for principal and
interest and for costs of this suit, to be taxed, &c. Let, upon the
infant Deft D. paying to the Pit what shall be certified to be due to
him for principal, interest, and costs within six calendar months, &o.,
at such time and place, &c., the Pit re-convey [re-assign,- or re-sur-
render], &c., to the said infant Deft or to such person or persons as the
judge shall direct on behalf of the said infant Deft. But in default,
&c., the said infant Deft is from henceforth to stand absolutely de-
barred and foreclosed, &c. If ordered add : And this decree is to be
binding on the infant Deft A. unless the said infant Deft, on being
served, after he shall have attained the age of twenty -one years, with
a subpoena to shew cause against this decree, shall, within six months
from the service of such subpoena, shew unto this Court good cause to
the contrary.
Foreclosure absolute by Consent.
The Pit, by his counsel, offering to pay to the Defts W. P. S. and
L. his wife and P. G. their costs of this cause as between solicitor
and client, upon an absolute decree of foreclosure being now made
as against them; and the said Deft W. P. S. by his counsel disclaiming
all interest in the property comprised in the indenture dated the 12th
August, 1831, and consenting to an absolute decree; and counsel for
the infant Deft F. G. not asking for liberty to redeem the mortgaged
premises or for any account of what is due to the Pit; Declare that it
will be for the benefit of the said Deft, L. the wife of the Deft W. P. S.,
and of the infant Deft F. G. to accept the said offer. Let the Defts
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MORTGAGES. 401
W. P. S. and L. his wife, and the infant Deft P. G-., stand absolutely
debarred and foreclosed of and from all right, title, &c. Let the
Pit pay to the Defts their respective costs of suit as between solicitor
and client (to be taxed, &o.) Billson v. Scott (V.-C. W.)> April 19,
1856.
Similar Order — Insufficiency of Mortgagor's Estate to redeem.
The; Pit by his counsel offering to pay to the Defts their costs of
this suit as between solicitor and client upon having an absolute .de-
cree for foreclosure, and the Deft C. L., by her counsel, disclaiming
all interest in the estate comprised in the indenture of mortgage in
the pleadings mentioned and consenting to an absolute decree, and
the infant, David Lever, not asking for liberty to redeem the mort-
gaged hereditaments, or for an account of what is due to the Pit :
And it appearing by the affidavit of the Deft 0. L., the widow of
H. L., the mortgagor, that the said H. L. died without leaving any
personal property of any value, Declare that it will be for the benefit
of the infant to accept the offer of the Pit, Let the Deft henceforth
stand absolutely debarred and foreclosed, and Let the Pit pay to the
Defts respectively their costs of this cause, to be taxed, &c. Croxon v.
Lever, 10 Jur. (N.S.) 87 ; 12 W. E. 237.
Infants may be foreclosed, or a sale directed against them.
The provisions of the 11 Geo. 4 & 1 Will. 4, c. 47, s. 10, do not aflfect the
right of the infant to the six months' time after coming of age to shew cause :
SchoUfleld V. Eeafidd, 7 Sim. 669 ; Ibid. 470 ; Price v. Carver, 3 M. & 0. 157.
Nor is that right affected by the provisions of the Trustee Act, 1850 : New-
bury V. Marten, 15 Jur. 166 ; see also Boiura v. Wright, 4 De G. & Sm. 265 ;
15 Jur. 981.
But where the Court is satisfied that the mortgaged property is not worth the
money, and the mortgagee has offered to pay the infant his costs of suit, orders
have been made by consent directing immediate foreclosure : Billson v. Scott
(V.-C. W.), April 19, 1856; Croxon v. Lever, 10 Jur. (N.S.) 87 ; 12 W. R. 237 ;
Orders, supra.
Where sales are made of mortgaged estates in suits for payment of debts
under the 11 Geo. 4 & 1 Will. c. 47, s. 12, or under the 2 & 3 ?ict. c. 60,
s. 1, or the 11 & 12 Vict. c. 87, s. 1, the infant is not entitled to a day to shew
cause : see 3 M. & 0. 163.
The effect of giving the day to shew cause in foreclosure suits was not to
enable the infant to dispute the account, nor to give him a new right of redemp-
tion, but only to shew error in the decree : Mallacle v. Oalton, 3 P. Wms. 352 ;
Bishop of Winchester v. , Beaver, 3 Ves. 314 ; Williamson v. Gordon, 19 Ves.
114.
Maeeied Womens' Estate.
Account — Foreclosure.
Let an account be taken of what is due, &c., for piincipal and
interest on his mortgage in the pleadings mentioned and for his costs
2 D
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402 MORTGAGES.
of this suit (such costs to be taxed, &o.). And upon the Dofts Poole
and wife paying what shall be certified, &o., within six months, &o.,
Let the Pits re-assign, &o. But in default, &o., Let the Defts Poole
and wife stand absolutely debarred and foreclosed, &o. Leieis v. Poole,
3 Giff. 636.
A married woman with the consent of her husband. may mortgage her interest,
whether in possession or reversion, in lands, in money subject to be invested in
lands, and in the proceeds of land directed to be sold : Fines and Recoveries Act,
3 & 4 Will. 4, c. 74, s. 77 ; Briggs v. Ohamherlain, 11 Hare, 69 ; 18 Jur. 56.
The husband and wife, or the husband alone, may during coverture dispose by
sale or mortgage of the wife's term of years, whether legal or equitable : Bates v.
Dandy, 2 Atk. 207 ; 3 Russ. 72, n. ; Fisher, vol. i. p. 234.
Every married woman may by deed, made with the concurrence of the hus-
band, and acknowledged by the married woman, dispose of any future or rever-
sionary interest, -whether vested or contingent, of her, or her husband in her right,
in any personal estate to which she shall be entitled under any instrument made
after the 31st December, 1857 (except a settlement on marriage or agreement for
a settlement) : 20 & 31 Vict. c. 57.
If the equity of redemption is in feme coverte owner, against whom and her
husband a bill is brought to foreclose, no day is given to her or her heirs to
redeem after the determination of coverture : Mallack v. Qalton, 3 P. Wms. 352 ;
Lewis V. Poole, 3 Giff. 636 ; see Order, supra.
An immediate order for absolute foreclosure is not usually made, even by
consent : Barrison v. Kennedy, 10 Hare, App. 51. But see Billson v. Scott,
ante, p. 401.
Where the husband and wife join in a mortgage of the wife's estate to secure
the husband's debt, and the equity of redemption be limited to the wife, her heirs
and assigns, the wife, on the bankruptcy of the husband, may redeem, the
assignees waiving their prior right : Fisher, vol. ii. p. 984 ; Huntington v.
Huntington, 2 Vern. 437 ; Tate v. Austin, 1 P. Wms. 264.
If the mortgage of the wife's estate be executed by her and her husband, part
of the money having been advanced to her before marriage, and the equity of
redemption being reserved to husband and wife, the decree for foreclosure will be
against both : Lewis v. Poole, 3 Giff. 636.
Where the husband is seised of the legal estate Jure uxoris, and husband and
wife join in a mortgage of the estate, reserving the equity of redemption to the
husband, the husband has that equity only jure uxoris : Buscombe v. Hare,
6 Dow. 20.
In the latter case, the heir-at-law of the wife was after the death of the husband
and upon a bill filed against his representative and mortgagee held entitled to
redeem. Ibid. ; see also Hill v. Edmunds, 16 Jur. 1134 ; 5 Do G. & Sm. 603, said
to be misreported.
The equity of redemption of the wife's real estate remains with her in ordinary
cases as part of the inheritance.
If the husband and wife join in mortgaging her chattel leaseholds, and the hus-
band survive, the redemption will belong to him as against the representatives of
the wife : Yong v. Eadford, Hob. 3. If the wife survive the right of redemption
will remain with her : Powell on Mort. 714.
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MOEXaAGBS. 403
SOLICITOR AND CLIENT.
AccouTd — Bills of Costs.
Let an account be taken of what is due to the Deft L., as executor
of W., deceased, for principal and interest on the mortgage made to the
said W. in the pleadings mentioned, and for his costs of suit, to be
taxed by the taxing master. And in case any part of the Deft's de-
mand consists of bills of costs, Let the same be taxed by the taxing
master, Declare that as to that part of the Deft's demand the mort-
gage is to stand as a security only for what, if anything, shall appear
due to the Deft on such taxation. Morgan r. Lewis (M. E.), 29 Nov.
1811; Seton, 416.
Deed to stand as Security for Sums advanced — Account.
Deolaee, that the agreement of the 24th October, 1789, and the
27th January, 1790, ought to be delivered up to be cancelled, and de-
cree the same accordingly. Declare, that the indentures dated the
24th and 26th March, 1790, are to stand as a security for the balance,
if any, due upon the accounts hereinafter directed. Let the following
accounts be taken, &c. Wood v. Downes, 18 Ves. 130.
If a solicitor obtain a benefit from his client, the solicitor must shew that he
has taken no advantage of his professional position. In default of proof the deed
will only stand as a security for the amount found to be due : Oibson v. Jeyes,
6 Ves. 266 ; Cutts v. Salmon, 16 Jur. 623 ; King v. Savery, 1 Sm. & G. 271 ;
hut see Bolman v. Loynes, 18 Jur. 839 ; Frees v. Coke, L. R. 6 Ch. 645.
Beneficial contracts and conveyances obtained by an attorney from his client
during their relation as such will in equity only stand as a security for the money
advanced : Wood v. Downes, 18 Ves. 120.
It is a weU-established rule that a solicitor cannot take a mortgage from his
client as a security for costs not yet incurred : Booth v. Cresvyicke, 8 Jur. 323 ;
Jones V. Tripp, Jac. 322.
But where an existing debt is included in a security for future costs the
security will be good as to the debt if due: Eoldsworth v. Wakemam,, 1 Dowl.
532 ; WilUaTns v. Piggott, Ibid. 598.
PINAL FORECLOSURE.
Common Order.
Upon motion, &c., and upon reading an order dated, &c. [the order
directing the accounts, &o.], the chief clerk's certificate dated, &o., and
an affidavit of the Pit filed, &o., whereby it appears that he did [or
an affidavit of — , whereby it appears that he did by virtue of a letter
of attorney from the Pit] attend on the — day of — , at — , &c., from
2 D 2
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404 MOETGAGBS.
before the hour of — till after the hour of — of that day, in order to
receive from the Deft the sum of — , but the said Deft did not, nor
did any person on his behalf, attend to pay the said sum, and it
appearing by the said affidavit [and also by an affidavit of the Pit]
that the said sum has not nor has any part thereof been since paid to
the Pit [or to the said — ], but that the whole thereof still remains due
and owing: Let the said Deft from henceforth stand absolutely de-
barred and foreclosed of and from all right, title, interest, and equity
of redemption of or in the said mortgaged premises comprised in the
indenture dated, &c., in the said decree and certificate particularly
mentioned or referred to.
Enlarging Time for Payment.
Upon motion, &c., and upon reading, &c.. Let the Deft B. pay to the
Pit A. his costs of this application, to be taxed, &c. Upon the Deft B.
paying to the Pit A. on or before the — day of — [the day fixed by
the chief clerk's certificate for payment of principal, interest, and
costs] the sum of £ — , certified to be due to the Pit for interest in re-
spect of his mortgage in the said decree dated, &o., mentioned, and for
his costs of this suit, the time for the Deft's redeeming the heredita-
ments comprised in the said mortgage be enlarged for six calendar
months. Upon such payment being made. Let the Pit's subsequent
interest be computed, and his subsequent costs of this cause taxed [if
account of rents directed hy the decree, add : And that the account of the
rents and profits of the mortgaged hereditaments be carried on, and
the amount due in respect thereof be deducted, &c.]. Let a new time
and place be appointed for payment of what shall be certified to re-
main due to the Pit in respect of his said mortgage, and for subsequent
interest and costs as aforesaid [after such deduction as aforesaid]. But
in default of the Pit paying to the Deft the said sum of £ — by the
time aforesaid, the said Deft is to stand absolutely debarred and fore-
closed, &o.
Pinal roEECLosaEE.
The Court will upon a proper case in a foreclosure suit either postpone the day
of payment of the mortgage money or open the foreclosure : Lee v. Heath, 9 Sim.
307, n. ; Alden v. Foster, 5 Beav. 592.
But in a redemption suit special circumstances must be stated : Faulkner v.
Bolton, 7 Sim. 319 ; Tipping v. Eawes, 17 Ves. 417.
The period granted upon first apphcations of this nature is usually six months.
The ordinary terms upon which the time is enlarged are payment of the sum
found due for interest and costs, carrying on the account of subsequent interest
and costs, and the payment of the costs of the apphoatiori : Finch v. Shaw, 20
Beav. 555 ; Coombe v. Stewart, 13 Beav. 111.
Where the right to redeem is in dispute, and time is required to prosecute an
appeal, the terms imposed have been the payment into Court of principal and
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MOETGAGBS. 405
arrears of interest, and consent to a receiver ; Monkhoxtse v. Corporation of Bed-
ford, 17 Ves. 380 ; Finch y. Shaw, 20 Beav. 555.
Where the time is enlarged hy reason of the act of the mortgagee, the mort-
gagor is not put upon the terms of immediate payment of the interest and costs :
Btichanan v. Qreenway, 12 Beav. 355.
And if the mortgagee having first proceeded by foreclosure, and finding the
estate insufficient, sues the mortgagor on his bond or covenant, equity will give
the mortgagor a further time to redeem : Cook v. Sadler, 2 Vem. 285.
The foreclosure will also be opened if the decree has been obtained by false
evidence or fraudulent practice : Loyd v. Mansdl, 2 P. Wms. 73 ; Harvey v.
Tebhutf, 1 Jac. & W. 197, cited in Fisher, vol. ii. p. 999.
An incumbrancer of doubtful means seeking to open the foreclosure and to
redeem upon the ground that he was not a party to the suit has been ordered to
give security for costs in case he did not redeem : Bird v. Oandy, 2 Eq. Ca. Ab.
251, n. ; Stevens v. WiUiams, 1 Sim. (N.S.) 545.
A foreclosure is not complete until the final order is made, and the final order
cannot be obtained if the rents have been received by the mortgagee since the
account was taken : Frees v. CoTce, L. K, 6 Oh. 645.
LIENS.
Vendor's Lien— Unpaid Purchase-money.
, Declare that the Pits are entitled to a lien on the freehold and
copyhold hereditaments comprised in the indenture in the pleadings
mentioned for the sum of £968 18s. 9d., and interest thereon at the rate
of £5 per cent, from the llth October, 1853, and for their costs of
the suit to be taxed, &c. Let the Deft Dawes on or before the 29 th
September next pay to the Pits the said sum of £968 18s. 9d., interest
and costs. In default of payment, Let the said freehold and copyhold
premises be sold. And in that case Let the money to arise from such
Bale be. applied in or towards payment to the Pits of the said sum of
£968 18s. 9d., interest and costs. — Liberty to apply. Wrout v. Dawes,
4 Jur. (N.S.) 396.
Vendor's Lien — BeversUm — Sale or Mortgage.
Declaee that the Pit has a lien upon the reversion of the said free-
hold, copyhold, and leasehold estates for the money paid by the Pit to
Manners, or his representatives, in discharge of the several bonds
entered into by him and Martindale in the bill named, dated, &c., and
decree the same accordingly.
Let an account be taken of what is due to the Pit for principal and
interest in respect of the money so paid by the Pit in satisfaction
and discharge of the said bonds. Let the Deft pay to the Pit what
shall be certified to be due to him within one calendar month, &c.,
at such time and place, &c. And in case the Deft shall not pay to
the Pit what shall be certified to be due, &c.. Let the same be raised
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406 MORTGAGES.
by mortgage or sale of tte reversion of the said freehold, leasehold,
and copyhold estates with the approbation of the judge. Let the
money to be so raised be paid into the bank to the credit of this
cause, and be applied in payment of what shall be certified to be
due, &o. No costs on either side up to the hearing. Order to be
without prejudice to Pit having his subsequent costs as mortgagee. —
Liberty to apply. Mackreth v. Symmons, 15 Ves. 329.
Agency Lden — Fimd in Oourt.
Declare that the Petitioners, the Defts Edward Cane and Maurice
Kane, are entitled to a lien upon the £642 Os. lid.. Bank 3 per Cent.
Annuities, standing to the credit of this cause, for the sum of
£150 14«. 2d., the amount of the moneys advanced by them to the
Deft Henry Eldon George Banks, and interest thereon.
Let so much of the said £642 0«. Hi., Bank 3 per Cent. Annuities,
as will raise the said sum of £150 14s. 2d., with interest thereon at the
rate of 5 per cent, per annum from the 14th February, 1855 (the
amount to be verified by affidavit), be sold, and the moneys to arise
by the said sale be paid to the Petitioners in satisfection of the moneys
so advanced by them. Keference to tax Petitioners' costs, and direc-
tions for payment out of residue of fund in Court. Lawrie v. Banks,
4 Jur. (N.S.) 299.
Liens in the Nature of Sahage — Premiums of Policy paid by Married
Woman out of Her separate Estate.
It appearing that Henry Winchester did during his life, and after
the bankruptcy of William Kow, pay four several sums of £119 18«. ?:d.
each, as and for premiums on the two policies in the pleadings
mentioned, which said several sums were properly due from and pay-
able by the said William Eow on his estate ; and it being admitted
that the said Henry Winchester has been fully repaid the said four
several sums of £119 18«. 8d!. each by the Pit Sarah Burridge, and that
his estate has not any claim or interest therein which has not been
paid and satisfied by the said Sarah Burridge, Declare that in respect
of, and in satisfaction for, each of such four sums, together with interest
thereon respectively after the rate of £4 per cent, per annum from the
respective times of the payment of such said four sums by Henry
Winchester, in the events that have happened, the Pits, in right of
Sarah Burridge, have a lien upon the capital of the aforesaid sum of
£5592 178 4i., Bank 3 per Cent. Annuities, in reversion immediately
expectant on the said life interest of Sarah Burridge. Burridge v.
Bow, 1 Y. & C. Ch. 183.
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MOETaAGBS. 407
Vekdor's Lien.
The vendor's right in equity against real estate is independent of possession,
and exists as well after as before conveyance : Wrout v. Dawes, 2 Giff. 381 ;
4 Jur. (N.S.) 397 ; Order, p. 405 ; Machreth v. Symmons, 15 Ves. 328 ; Order,
p. 405 ; Winter v. Lord Anson, 3 Russ. 492 ; Mathew v. Bowhr, 6 Hare, 110 ;
Harrison v. Boutlicote, 2 Ves. 392.
If purchase-money is paid prematurely, it will be a lien upon the estate in the
hands of the vendor for the purchaser or his personal representatives: Fisher,
123 ; 2 Sugd. V. & P. 11th ed. 857 ; ,15 Ves. 345.
And there is a lien for the deposit-money and interest on unpaid purchase-
money : Bose v. WaUwi, 10 Jur. (N.S.) 297 ; 33 L. J. (Ch.) 385 ; 10 H. L. C. 672.
The lien does not exist if the purchaser has abandoned the contract through
his own default.
Partnership Liens.
On the dissolution of a partnership by the death or retirement of a partner, the
retiring partner, or the representatives of the deceased, have a lien on the partner-
ship estate for demands arising out of the joint business prior to the dissolution :
West v. Skip, 1 Ves. 239, 456 ; Skip v. Harewood, 2 Sw. 586 ; Taylor v. Fields,
4 Ves. 398. See also Ex parte King, 17 Ves. 115 ; Slacken v. Dawson, 9 Beav.
239 ; Payne v. Hornby, 25 Beav. 280 ; 4 Jur. (N.S.) 446 ; Be Langmea^s Trusts,
20 Beav. 20 ; 7 De G-. M. & G. 353.
Agency and other Liens.
An agent who has advanced money has a lien upon the property in respect
of which the advances were made : Lawrie v. Banks, 4 Jur. (N.S.) 299 ; Order,
p. 406 ; Foxcraft v. Wood, 4 Euss. 487 ; Bristowe v. Whitmore, 9 H. L. C. 391
Deane v. Byrnes, 13 W. E. 299.
Where advances have been made in the nature of salvage, viz., such as are made
for the redemption of property or for renewal fines, the person making the pay-
ment has a lien upon such property : Kerr, 130.
And a married woman, who out of her separate estate has paid the premiums
on policies effected as a provision under her marriage settlement, is also entitled
to such a lien : Burridge v. Bow, 1 Y. & C. Ch. 183.
A lien is also allowed to the managers of certain undertakings for expenses
incurred in their management and working : Fraser v. Burgess, 13 Moo. P. C.
314 ; 6 Jur. (N.S.) 327, per Lord Kingsdown. See also Scoff v. Nesbitt, 14 Ves .
438, per Lord Bldon ; Be Leith's Estate, L. E. 1 P. C. 296 ; Moirison v. Morrison,
7 De G. M. & G. 214.
Vendor's Lien against Eailwat Company.
Where a railway company took land, made a railway thereon, and afterwards
leased the railway to another company, part of the purchase-money remaining un-
paid, the first company were ordered to pay, and in default both companies
were restrained from using the land : Oosens v. Bognor By. Co., L. E. 1 Ch. 594.
The owner of land taken by a railway company has a lieu upon the land for
the purchase-money. Be is not deprived of the lien by a deposit and bond under
the 85th section, and the .Court will enforce the lien by sale, although the rail-
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408 MORTGAGES.
way has been made and opened for public use : Walker v. Ware, Hadham,
and Buntingfwrd By. Co., L. B. 1 Eq. 195.
A vendor of land to a railway company, who have used it for the purposes of their
railway, is entitled to the same lien on the land for unpaid purchase-money as an
ordinary vendor. And in default of payment, after decree in a suit for specific
performance, the vendor is entitled to a sale, although the railway is opened for
a-affic: Wing v. Tottenham Hy. Co., L. R. 3 Ch. 740.
In a suit for specific performance by unpaid vendors against two railway com-
panies and their lessees in possession, a decree was made for specific perfonnance,
a lien was declared as against both companies, and in default of payment leave
was given to apply for an injunction and receiver : Bishi^ of Winchester v. Mid-
Hants Ry. Co., L. B. 5 Eq. 17.
MERCHANT SHIPPING ACTS.
Lien — Mortgage to he executed — Account — Bill of Sale.
Declaee that the Pit., as the executrix of William Evans Nichols,
is entitled to a lien on the shares of the Defts in the ship Oden in the
Pit's hill mentioned for the sum of £300, and interest thereon at the
rate of £10 per cent, per annum from the 22nd February, 1867, until
payment, and for £15 for commission, as in the Pit's hill mentioned.
Let the Defts Somerville and Langdon execute to the Pit Georgiana
Frederick Nichols proper mortgages of their respective interests in
the said ship, in conformity with the provisions of the Merchant
Shipping Acts, and be settled by the judge in case the parties differ.
Let, upon such mortgages being executed and duly registered by the
Pit, an account be taken of vfhat is due to the Pit for principal and
interest under such mortgages, and for her costs of this cause (such
costs to be taxed by the taxing master). Let, upon the Defts or
either of them paying to the Pit what shall be certified by the chief
clerk to be the total amount of principal, interest, and costs within
six calendar months from the date of the certificate, at such time and
place as shall be thereby appointed, the Pit Georgiana F. Nichols
deliver up such mortgages with a proper receipt for the mortgage
money thereby respectively secured indorsed thereon, and also all
deeds and covenants relating thereto, upon oath to the said Defts, or
such one of them as shall pay the same. But in default of the Defts
or either of them paying to the Pit what shall be so certified to be
due to her as aforesaid by the time aforesaid. Let the said Defts exe-
cute to the Pit a bill of sale of their interest in the shares of the said
ship, but subject to the mortgage of the share of the Deft Somerville
to Edward E. Cummins in the Pit's bill named. Let the injunction
awarded, &c., be continued. — Liberty to apply. Nichols v. Somerville
(V.-C. M.), March 10, 1869.
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MOETGAGES. 409
Stoppage in Transitu — Account — Payment.
Let the following accoTints be taken : — ■
1. An account of all sums of money received by the Deft E. in
respect of the cargo of wheat in the pleadings mentioned. 2. An
account of his costs and charges in respect of the said cargo and the
sale thereof. 3. An account of what is due to the Deft for principal
and interest in respect of the bill of exchange for £1000 in the plead-
ings also mentioned. Let what shall appear due on the two last-
mentioned accounts be deducted from what shall be certified to be
due on the account numbered 1. Let what shall be certified to be the
balance of the said accounts after such deductions be paid by the Deft
E. to the Pits. Deft to pay Pits' costs of suit. — Liberty to apply.
Spalding v. Btiding, 6 Beav. 376.
Charge on Freight — Account.
Declare that the Pit is entitled to a charge on the freight payable
under the charterparty dated the 27th November, 1863, in the
pleadings mentioned, of the ship Pharamond, in priority to the claim
of the Deft George Tanner therein. Let the following accounts be
taken : 1. An account of what is due from the Defts P, & K. for
and in respect of the freight of the said ship under the said char-
terparty, after deducting any sums properly advanced or expended by
them. 2. An account of what is due to the Pit under or by virtue of
her charge upon the said freight of the said ship. Let what on taking
the last-mentioned account shall be found due to the Pit be paid to him
by the said Defts P. & K. out of the moneys which shall be found due
from them in respect of the freight so far as the same shall extend.
Let the costs of the Pit and of the Defts P & K. of this suit be taxed
by the taxing master. Let the Pit pay to the Defts P. & K. their
said costs when so taxed. Let the Deft T. pay to the Pit his costs
when taxed, including what he shall have paid to the Defts P. & K. —
Liberty to apply. Broum v. Tanner, L. E. 2 Eq. 806 ; reversed, L. E.
3 Ch. 597.
The Meechant Shipping Acts.
A registered ship, or any share therein, when disposed of by persons qualified
to be owners of British ships, must be transferred by bill of sale, and such trans-
fer and the transmission of interests by death, bankruptcy, or marriage must be
registered in manner provided by the Merchant Shipping Acts, 17 & 18 Vict.
c. 104, and 17 & 18 Vict. c. 120.
By the Act 17 & 18 Vict. c. 104, a registered ship or any share therein may
be made a security for a loan or other valuable consideration, and the mortgage
must be in the form mentioned in the schedule to the Act. On production of
such instrument the registrar of the port at which the ship is to record the same
in the register book : sects, 66 and 67.
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410 MOETGAGES.
Whenever any registered mortgage has been discharged an entry is to be made
in the register book on production of the mortgage deed : sect. 68.
Where the discharge of a mortgage has been duly registered under this section
the mortgage cannot be revived on an allegation that the discharge was given by
mistake : Bell v. Blyth, L. R. 6 Eq. 201 ; S. 0. 4 Ch. 136.
A registered mortgage of any ship or share in a ship may be transferred, and
the transfer registered : 17 & 18 Vict. c. 120, s. 73.
The transmission of interest of mortgagees in consequence of death, bank-
ruptcy, marriage of female mortgagee, or by any other lawful means other than
by transfer under the Act, is to be authenticated by declaration and evidenced
according to the Act : sects. 74 and 75.
Any registered owner, if desirous of selling or mortgaging the ship or share
therein at any place out of the country or possession in which the port of regis-
try is situate, may obtain from the registrar certificates giving powers of sale or
mortgage : sects. 76, 77, 78, 79.
The power has to be exercised conformably with the directions contained in
the certificate, and no mortgage lond fide made thereunder can be impeached
by reason of the death before the making of the mortgage of the person by whom
the power was given : sect. 80 (1), (2), (3).
New certificates may be issued upon proof of loss or obliteration of original
certificates : sect. 83.
The registry of any ship may be transferred from one port to another upon the
application of parties, whether as owners or mortgagees. And such transfer of
registry will not affect the rights of persons interested : 17 & 18 Vict. c. 120,
sects. 89, 91.
Although the latter Act contains no provision negativing validity of a mort-
gage made otherwise than according to the tenns of the Act, the whole scope of
the Act is to that effect, -and an equitable mortgage not complying with the
terms of the Act as to registration was held invalid : Liverpool Borough Bank v.
Turner, IJ. & H. 159 ; 2 De G. F. & J. 502.
No notice of any trust, express, implied, or constructive, is to be entered on the
register, and, subject to any rights and powers appearing by the register book to be
vested in any other person, the registered owner of any ship, or share therein, has
power absolutely to dispose of the same : 17 & 18 Vict. c. 104, s. 43.
Under this section it has been held that the assignees in bankruptcy of the
owner of a ship cannot claim it against a mortgagee whose mortgage made before
the completion of the ship was registered after it was completed, and registered by
the owner : Bell v. Banh of London, 3 H. & N. 730, cited in Fisher, vol. i. p. 65.
The expression " beneficial interest " whenever used in the second part of the
principal Act (17 & 18 Vict. c. 104) includes interest arising under contract, and
other equitable interests ; and the intention of the said Act is that without pre-
judice to the provisions contained in the said Act for preventing notice of trusts
from being entered in the register book, and without prejudice to the power of
disposition conferred by the said Act on registered owners and mortgagees, and
without prejudice to the provisions contained in the said Act relating to the
exclusion of unqualified persons from the ownership of British ships, equities may
be enforced against owners and mortgagees of ships in respect of their interest
therein : 25 & 26 Vict. c. 63, s. 3 (Merchant Shipping Amendment Act, 1862).
Under this section it has been held that although a mortgage transaction in
order to operate as a valid transfer must be a complete satisfying the terms of
17 & 18 Vict. 0. 104 {Liverpool Borough Banh, supra), it is open to the owners of
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MORTGAGES. 411
a ship to shew that the transfer, though ahsolute in its terms, was intended as a
security only : Ward v. Beck, 9 Jur. (N.S.) 912 ; The InnisfaUen, L. K. 1 A. &
E.72.
And where a. deposit of title deeds has been made under circumstances which
rendered compliance with the statute as to registration impossible, the Court of
Chancery has declared the mortgagees entitled to a lien upon the sale moneys of a
ship : Lacon v. lAffem, 9 Jur. (N.S.) 13 ; see also Stapleton v. JSaymen, 10 Jur.
(N.S.) 497.
Under the 50th section of 17 & 18 Vict. c. 104, a pledge by the master and sole
owner of a ship, of the certificate of registry, although for a sufficient consideration,
is illegal and void : Wiley y. Crawford, 7 Jur. (N.S.) 1296 ; and an action will lie
by the master and owner against the person detaining it.
The right of an insurer of ships who is, but does not appear on the register as,
the mortgagee to the proceeds of the policies, is not affected by the Acts : Lad-
hrooke v. Lee, 4 De G. & Sm. 106 ; Fisher, vol. i. p. 66.
It is not necessary to comply with the Acts in order to make a valid assign-
ment of the present or future (Douglas v. JRusseU, 4 Sim. 524 ; 1 M. & K. 488)
freight of the ship, provided the object be carried out by a distinct contract :
Fisher, voL i. p. 67 ; Mestaer v. QiUespie, 11 Ves. 621 ; Langton v. Horton,
1 Hare, 549 ; Oibson v. Ingo, 6 Hare, 112.
Although the mortgagee of a ship is entitled to the freight earned by it, the
mortgagor is, in the absence of any contract between himself and the mortgagee,
entitled to the cargo : Alexander v. Simms, 18 Beav. 83.
The freight to be earned by a particular voyage may be effectually assigned,
although the ship and the freight generally may have been previously mortgaged :
Lindsay v. Gibhs, 22 Beav. 522.
The mortgagee of a ship is entitled to all the rights and liable to all the duties
of an owner &om the time of taking possession, and he is entitled to receive all
freight remaining due when possession is taken : Brown v. Tanner, L. E. 3 Ch.
597 ; Wilsim v. Wilson, L. E. 14 Eq. 32. See also Cato v. Irving, 5 De G. &
Sm. 210 ; Bdberts v. Brett, 11 H. L. C. 337.
Where the owner of a ship assigned the freight, not yet earned, and three days
afterwards, with the knowledge of the assignee, mortgaged the ship, and the mort-
gage was registered, the assignee who had omitted to give notice of his claim
upon the freight was not entitled to set up his right against the mortgagees :
Wilson V. Wilsm, L. E. 13 Eq. 32.
The first registered mortgagee of a ship, by taking possession of her before the
freight is completely earned, obtains a legal right to receive the freight, and to
retain thereout not only what is due on his first mortgage, but also the amount of
any subsequent charge which he may have acquired on the freight, in priority to
every equitable charge of which he had no notice: Liver^ol Marine Credit
Company v. Wilson, L. E. 7 Ch. 507.
It makes no difference that a subsequent incumbrancer was the first to give
notice to the charterers of his charge on the freight : S. C.
The transfer of goods for valuable consideration by a consignee for a limited
purpose does not destroy the consignor's right of stoppage in transitu, ultra the
particular lien of the transferee : Spalding v. Ending, 6 Beav. 376 ; Order,
p. 409 ; Coventry v. Gladstone, L. E. 6 Eq. 44.
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412 MORTGAGES.
Bottomry.
Bottomry, or the security by which the fabric, rigging, and stores of a ship
are charged with the repayment of money advanced for her repairs, or for other
purposes necessary for the prosecution of her voyage, is a negotiable instrument.
The form of a bond is not necessary for the validity of the instrument. The
power to make a valid contract of bottomry is generally vested in the master of
the ship alone, and the power is based upon the necessity of acting by an agent
where no contract can be made by the owner : see Fisher, vol. i. p. 76.
The power of raising money on bottomry is not confined to the ship and freight.
In case of necessity the master may also hypothecate the cargo : Ibid. 76 ; The
Lord Cochrane, 8 Jur. 714.
The shipowner remains liable to the owner of the cargo for whatever the latter
may have had to pay by reason of the insufficiency of the ship and freight to pay
the sum due on the bond : Benson v. Duncan, 1 Ex. 537.
The repayment of money due on a bottomry bond is made to depend upon the
safe arrival of the ship, and the contract will be avoided by a condition for pay-
ment on other terms : Stainhanh v. Fenning, 15 Jur. 1082 ; Stainbank v.
Shepard, 17 Jur. 1032.
The security is not rendered invalid by reason of the alleged illegality of the
voyage : The Mary Ann, L. E. 1 A. & E. 13.
The money may be raised for the repairs of the ship, and for payment of all
necessary charges in and about the ship and crew to enable her to prosecute her
voyage, and for salvage : The Royal Arch, Swabey, 269, cited in Fisher, vol. i .
p. 78 ; Wallace v. Fielden, 7 Moo. P. C. 398.
The master must, before he borrows money on a bottomry, commimicate, if
possible, with the owner of the ship : The Oriental, 7 Moo. P. C. 408.
And before hypothecating the cargo the master should, if possible, commimi-
cate with the owner or consignee of the cargo: The Bonaparte, 8 Moo. P. C.
459 ; 14 Jur. 605 ; Cargo ex Sultan, 5 Jur. (N.S.) 1060.
The essence of a bottomry security is that there shall be a maritime risk to be
ascertained from the contents of the instrument : L. E. 1 Ad. 14. The repayment
of the money advanced is made to depend upon the safe arrival of the ship, and
the contract will be avoided by a condition for payment upon other terms : Stain-
banh v. Fenning, 17 Jur. 1032.
Respondentia applies to the cargo alone : Cargo ex Sultan, 5 Jur. (N.S.) 1060.
Respondentia securities, unlike such as are made on bottomry, bind the owners
personally : 2 Bl. Com. 458 ; Busk v. Fea/ron, 4 East, 819.
If justice requires that before payment of the bond a more complete investiga-
tion should he made into the circumstances under which it was given than the
forms of the Admiralty Court will allow, and there are equities which the Court
of Chancery only can determine, it will restrain proceedings on the bond in the
Court of Admiralty : Fisher, 86 ; Duncan v. McOaimont, 3 Beav. 409.
EEDEMPTION SUIT.
Mortgagee in Possession — Common Decree.
[If right of redemption has been in dispute : Declare that the right of
redemption in the premises comprised in, &c., is still subsisting.] Let
the following accounts be taken : —
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MORTGAGES. 413
1. An account of what is due to the Deft for principal and interest
on his mortgage in the pleadings mentioned, and for his costs of this
stiit (such costs to be taxed by the taxing master).
2. An account of the rents and profits of the hereditaments received
by the Deft or by any other person or persons by his order or for his
use, or which without his or their wilful default might have been so
received. Let what shall appear due on such last-mentioned account
be deducted from what shall appear due to the Deft for principal,
interest, and costs on the account numbered 1.
Upon the Pit paying to the Deft what shall be certified to be due to
him for principal, interest, and costs, after such deductisn as afore-
said, within six calendar months, &c., at such time and place, &o., Let
'the Deft re-convey [re-surrender, or re-assign] the said mortgaged
hereditaments free and clear, &c., and deliver up all deeds [Court
rolls], documents, and writings, &c. But in default of the Pit paying
to the Deft what shall be certified to be due for such principal, interest,
and costs after such deduction as aforesaid, by the time aforesaid. Let
the Pit's bill from thenceforth stand dismissed out of this Court, with
costs to be taxed, &o., and paid, &c. — Liberty to apply.
Special Accounts and Inquiries.
Repairs,
Let an account be taken of all sums of money laid out by the Deft
in necessaiy repairs or lasting improvements on the premises com-
prised in the said mortgage. Let interest be computed on the sums
which shall appear to have been so laid out after the same rate of
interest as the mortgage carries. Let what shall appear due on such
account be added to what shall appear due for principal, interest, and
costs.
Sents and Profits.
Let an account be taken of the rents and profits received by the
Deft or by any other person or persons by his order or for his use, or
which without the wilful default of the said Deft might have been so
received. Let what shall appear due on such account be deducted
from what shall appear due for principal, interest, and costs.
Occupation Ment.
Let an inquiry be made whether the Deft has been in actual pos-
session and enjoyment of the mortgaged premises, and for what period ;
and if it shall appear that he has been in such possession and enjoy-
ment. Let an annual value by way of occupation rent be set thereon
for such period, and be settled by the judge in chambers. Let the Deft
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414 MOETGAGES.
be charged therewith ; and Let the same be deducted from what shall
appear due for principal, interest, and costs.
Insurance Premiums — Fines.
Let an account be taken of the sums paid by the Deft for premiums
on the policy of insurance in the pleadings mentioned, with interest
thereon at the same rate as the mortgage carries. Let the amount
which shall be certified to have been so paid be added to the amount
which shall be certified to be due for principal, interest, and costs.
Annual Bests.
Let an account be taken of rents and profits, &c. ; and in taking the
said account Let annual rests be made of the clear balances, and Let
interest be computed on such respective balances at the rate of £5 per
cent, per annum. And in making such annual rests, except the first,
the interest of each preceding balance is to be included in the balance
then stated, eo as to charge the Deft with compound interest thereon.
Bedemption Suit — Tender of Money due — Payment into Court.
Let the Pit on or before the — day of — pay the sum of £600 into
Court to the credit of, &c. Let, upon such payment being made, the
Defts P. deliver up aU deeds, &c. Let an account be taken of what,
on the — day of — [date of tender], was due to the Defts for principal
and interest in respect of their mortgage security dated, &c., and for
the costs, charges, and expenses as are secured thereby, or as they are
entitled to under their said mortgage security, such costs, charges,
and expenses to be taxed, &c. And if it shall appear on taking
the said account that the amount due to the Defts for such principal,
interest, and costs did not exceed on the — ■ day of — the sum of £670
(the sum tendered). Let the Pit's costs of this suit be taxed by the
taxing maste;r, and amount be deducted. Let the balance remaining
due to the Deft be paid out of the said sum of £600 when so paid in.
And thereupon Let the Defts re-convey, &c., and Let the residue
of £600 be repaid to the Pit. But if the Pit shall not pay in the
£600, upon the Pit paying to the Defts the amount found due within
six calendar months, &c.. Let the Defts re-convey, &c., and deliver up,
&c. But in default of such last-mentioned payment. Let the Pit's bill
be dismissed with costs, to be taxed and paid, &o.
But in case it shall appear on taking the said accounts, &o., that the
amount due to the Defts on the — day of — did exceed the sum of
£570, Let subsequent interest be computed from the said — day of —
and added to what shall appear due as aforesaid.
Tax the Defts' costs of suit, amount to be added ; and what shall
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MOETGAGES. 415
be certified to be due to be paid out of the £600, and the residue to the
Pit. If the £600 be insufficient, the whole to be paid to the Defts in
part-payment, and the balance to be paid by the Pit ; and thereupon
Defts to re-convey, &o. And in case the Pit shall not pay in the
£600, usual directions for redemption, or bill to be dismissed with
costs. Harmer v. Priestley, 16 Beav. 569 ; Seton 462.
Medemption Suit — Suit hy Mortgagor against Transferee of Mortgage and
Derivative Mortgagee.
Let the following accounts be taken : —
1. An account of what is due to the Deft G. (transferee of mort-
gage) on the mortgage in the pleadings m.entioned made to F. by
indenture dated, &c., and afterwards assigned to the Deft G. by in-
denture dated, &c., and " for costs, &c." — Accounts as to rents, repairs,
and occupation-rent. — An account of what is due to the Deft H. (the
derivative mortgagee) for principal and interest in respect of the
derivative mortgage from the Deft G., and for costs of this suit, to be
taxed, &c. Let what shall appear due for such principal, interest, and
costs be deducted from what shall appear due to the Deft G. on his
several accounts hereinbefore directed. Let what shall be certified
to be due to the Deft H. be paid to him, and what shall be certified to
remain due to the Deft H. be paid to him. Upon the Pit paying to
the Defts G. and H. respectively what shall be certified to be due to
them on the said accounts, within six calendar months, &c., at such
time and place," &c., Let the Defts G. and H. re-convey and re-assign,
&c., and deliver up all deeds, &c. But in default, &c., Let the Pit's
bill from thenceforth stand dismissed, &c. — Liberty to apply. Stephen-
son V. Green, 1801, B. 674; Seton, 473.
Successive Bedemptions — Suit hy Second Mortgagee v. First and Third
and Mortgagor.
Let the following accounts be taken : —
1. An account of what is due to the Deft B. [first mortgagee] for
principal and interest, &c., and for costs to be taxed, &c. Upon payment
by Pit of the amount certified. Deft B. to convey, &c., and deliver up,
&c. In default of payment bill to be dismissed with costs, to be taxed
and paid, &o. And in case of such payment. Let interest be computed
on what the Pit shall so pay, and Let an account be taken of what is
due to the Pit on his own mortgage dated, &o., for principal and
interest and for costs of suit, such costs to be taxed, &c. Upon pay-
ment by Deft C. [third mortgagee] within three calendar months, &c..
Let Pit convey, &c., and deliver up, &c. In default of payment
Deft C. to be foreclosed. In case of such foreclosure Pit's subsequent
interest to be computed, and subsequent costs taxed. And upon pay
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416 MORTGAGES.
ment by Deft D. [mortgagor] of what the Pit shall have paid Deft B.,
and subsequent interest and costs, and of amount due on Pit's mort-
gage, within three calendar months, &c., Pit to convey, &c. In
default Deft D. [mortgagor] to be foreclosed. In case the Deft C.
redeem the Pit, an account of what they shall pay Pit with interest,
and of Deft C.'s own mortgage debt, interest, and costs, &c. Upon
payment by Deft D., Deft C. to convey. In default of payment
Deft D. to be foreclosed. — Liberty to apply.
Suit in Nature of Redemption Suit — Deft claiming to he Equitable
Mortgagee — Charged with Waste.
Let the following accounts be taken : —
1. An account of what is due for principal and interest to Stephen
Jones deceased and to the Deft respectively under the trusts of the
indenture of the 17th May, 1849, and the security of the equitable
mortgage transferred to the Deft by Evan Jones in the pleadings
mentioned, and Let such account be taken upon the footing»of the
sum of £650, being the total principal sum to be discharged under the
trusts of the said indenture of the 17th May, 1849.
2. An account of the rents and profits, &c., received by the said
Stephen Jones deceased, and by the Deft or either of them, or which
without their wilful default, &c. Let a value by way of annual rent
be set on the farm called Bronhonnant during the occupation thereof
by the Deft from the 25th March, 1862, to the 29th September, 1862,
and Let the Deft be charged with such value in the said account of
rents and profits. Let what shall from time to time be charged against
the said Stephen Jones and the Deft, or either of them, in taking the
accounts aforesaid, be applied in accordance with the trusts of the said
indenture dated 17th May, 1849, and in discharge of the amount which
shall be certified to be due on the security of the said equitable mortgage.
Directions for appointment of receiver. Let so much of the Pit's bill
as relates to waste to the stock, crops, implements, and effects) &c., be
dismissed without costs. Let the Pit's costs of suit up to the hearing,
save in so far as such costs may have been incurred by such parts of
the bill as are dismissed, be taxed by the taxing master and paid by the
Deft. Adjourn further consideration. — Liberty to apply. Jaines v.
Jones (V.-C. B.), Feb. 21, 1871.
Bedemption and Foreclosure Decree — Suit by Judgment Creditor —
Payment into Court.
Let the following accounts be taken : — 1. An account of what is due
to the Deft Eichard Buckley, and to the Defts Eichard Buckley and
William Preston Bradbury, as the legal personal representatives of the
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MORTGAGES. 417
Deft Thomas Buckley, deceased, and to William Ellison Highams Bott
and Thomas Lewis as his trustee, for principal and interest on their
respective mortgages and charges in the pleadings mentioned, and for
their respective costs as mortgagees and of this suit, such costs to
be taxed by the taxing master, who in taxing the same is to allow
only one set of costs as between the Defts William Ellison Highams
Bott and Thomas Lewis,
And upon the Pit paying to the Deft Eichard Buckley and the
Defts Eichard Buckley and William Preston Bradbury, as such legal
personal representatives as aforesaid, what shall be certified to be due
to them respectively for principal, interest, and costs, as aforesaid,
and paying into Court to the credit of this cause, B. v. B., what- shall
be certified to be due to the Deft WiUiam Ellison Highams fiott or
the Deft Thomas Lewis as his trustee for principal and interest (if
any) as aforesaid, and paying to them what shall be certified to be
due to them for costs as aforesaid, within six calendar months after
the date of the chief clerk's certificate, at such time and place, and in
such iflanner as shall be thereby appointed, Let the Defts other than
the Deft William Bott convey the said mortgaged hereditaments free
and clear of and from all incumbrances made by them respectively, or
any persons claiming by, from, or under them respectively, and deliver
up all deeds and writings, &c., upon oath to the Plaintiff, or as he
shall direct. But in default of the Pit paying to the said Defts and
into Court as aforesaid what shall be certified to be due to the Defts
respectively for -such principal, interest, and costs as aforesaid. Let
the Pit's bill from thenceforth stand dismissed with costs, to be taxed,
&c., and paid, &c.
And in case the Pit shall redeem the said mortgaged premises. Let
the sum which the Pit shall so pay into Court as aforesaid be in-
vested in Consolidated £3 per cent. Annuities to the credit of this
cause, B. v. B., to an account to be intituled. The mortgage account
of the Deft Thomas Lewis as trustee for the Deft William Ellison
Highams Bott. And Let subsequent interest be computed on what
the Pit shall have so paid to the said several Defts (other than the
Deft William Bott) and into Court as aforesaid. And Let an account
be taken of what is due to the Pit upon or by virtue of his judgment
in the bill mentioned, and for his costs of suit, to be taxed, &c. Let,
upon the Deft William Bott paying to the Pit what he shall have so
paid to the Defts other than the Deft William Bott and into Court as
aforesaid, together with what shall be certified to be due to him in
respect of such subsequent interest thereon as aforesaid, and also what
shall be certified to be due to the Pit upon or by virtue of his said
judgment, and for his costs as aforesaid, within three calendar months
after the date of the chief clerk's certificate, at such time and place as
2 E
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418 . MORTGAGES.
shall be thereby appointed, Let the Pit re-convey the said mortgaged
premises, and deliver up all deeds, &o., upon oath to the Deft William
Bott, or as he shall appoint. Let the dividends to accrue during the
life of William Bott upon the Consolidated £3 per cent Annuities, to
be purchased as hereinbefore directed, be paid to the Deft William
Bott untn further order.
But in default of the Deft William Bott paying to the Pit what
shall be certified to be due to him within the time aforesaid, the
Deft William Bott is from thenceforth to stand absolutely debarred
and foreclosed, &c. And in that case Let the dividends as they
accrue during the life of the Deft William Bott upon the said Con-
solidated Annuities be paid to the Pit Samuel Becket or his legal
personal representative. — ^Continue the receiver. — Liberty to apply
after the death of Deft WUliam Bott as to payment of the said Con-
solidated Annuities. Beckett v. Buckley, L. E. 17 Eq. 435.
Bedemption of an Aimuity.
Declare the Pit M. entitled to redeem the annuity of £ — in the
pleadings mentioned upon payment of the principal sum of £ — and
interest thereon after the rate of £ — per cent, per annum.
Let the following accounts be taken : —
1. An account of what is due to the Defts as executors of the
testator (the annuitant) for principal and interest after the rate, &c.,
and for their costs of this suit, such costs to be taxed, &o. 2. An
account of the sums which the] said testator in his lifetime or the
Defts, his executors, since his decease, have received on account of
the said annuity. Let what shall appear to have been so received on
account of the said annuity be applied first in discharge of the interest
of the said sum of £ — and then in reduction of the principal. Upon
the Pit paying to the Defts what shall be certified to remain due for
principal, interest, and costs within, &c.. Let the Defts deliver up
on oath to the Pit his securities for the payment of the said annuity,
and release and assign the said annuity to the Pit, or to whom
he shall appoint, such release and assignment to be settled by the
judge, &c. But in default of such payment, Let the Pit's bill stand
dismissed. — Liberty to apply. Knight v. Bowyer, 1857, A. 1705 ;
Seton, 480.
Bedemption Suit by Mortgagee of Shares — Galh made before and
subsequent to Mortgage — Sale.
Declare that the Pits are entitled to the 216 shares in the North
Frances Mines Company (which were transferred to them by Peter
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MORTGAGES. 419
Stainsby in the pleadings named by way of mortgage for securing the
sum of £1700 and interest), subject to the payment of the several calls
of 10s. per share made by the said company on the said shares since
such transfer, and that subject to such payment the North Frances
Mines Company have a lien npon such shares for the amount of calls
(if any) due upon such shares from the said Peter Stainsby previously
to his executing to the Pits the transfer of the said 216 shares.
Let the Pits pay to the Defts, the committee of management of the
said mine, the sum of £648, being the amount of the said calls of 10s
per share made by the said company on the said 216 shares since the
said transfer. By consent of the said Defts, Let the said shares
be sold with the approbation of the judge. — Money to be paid into
Court.
Let an account be taken of what is due to the Pits for principal and
interest on the said £1700, and for costs of suit (such costs to be taxed,
&c.), including the sum of £648 hereinbefore directed to be paid by the
Pit for calls as aforesaid. Let the amount found due be paid to the
pits out of the said moneys when so paid into Court. If moneys not
sufficient, the whole to be paid towards liquidation of the debt, and
balance remaining due to be certified. An account of what is due
from the estate of Peter Stainsby to the company for calls made prior
to the transfer of the shares to the Pits, the amount found due, and in
that case the Defts' costs of suit to be paid out of residue of moneys in
Court, ultimate residue to be paid to official assignee of Stainsby. If
nothing found due to Defts their costs of suit reserved. — Liberty to
apply. Watson y. Holes, 23 Beav. 294.
Bedem'ption Suit hy Mortgagee of Beversion — Unreasonable Bargain —
Interest at £5 per Gent.
Declaee that the bond dated, &o., the promissory note dated, &c.,
and the indenture of mortgage dated, &c., and all other securities (if
any) assigned, deposited, or given, to the Deft by E. B. in the bill
named, ought to stand as a security only for such sum or sums (if any)
as the said Deft actually advanced to the said E. B. on the security
thereof, together with interest on such advance or advances at the rate
of £5 per cent per annum from the date of such advance or advances
to the day of payment.
Let an account be taken of aU moneys actually advanced by the
Deft to the said E. B. on the security of the said bond, promissory
note, and mortgage and other securities (if any), together with interest
thereon at the rate of £5 per cent, per annum from the date of such
advance or advances to the day of payment.— Let the Pit pay to the
Deft what shall be certified to be due.— Directions for delivery by Deft
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420 MORTGAGES.
to Pit of the securities. — Deft to pay costs of suit. — ^Liberty to apply.
Beynon v. CooJc (M. E.) Feb. 15, 1875 ; affirmed, L. E. 10 Ch. 389.
The Eight to redeem.
• The estate in mortgage may be redeemed not only by the persons specified in
tke proviso for redemption and their representatives, but also by all persons having
any interest in or lien upon the estate : Fisher, vol. i. p. 293.
The equity of the wife's real estate remains with her in ordinary cases as part
of the inheritance. With respect to her chattel leaseholds, if the husband and
wife mortgage, and the husband survive, the redemption will belong to him. But
if the wife survive, the right of redemption will remain with her : Ibid.
A surety is entitled to redeem the estate charged : Ex parte Crisp, 1 Atk. 608 ;
Wright v. Morhy, 11 Ves. 12.
Any one of joint tenants, or tenants in common, may redeem each as against
an incumbrancer, and subject to account with his co-tenant : Wynne v. Styan, 2
Ph. 306. But one cannot redeem his o^-n moiety only.
Tenants in tail of the equity of redemption and the tenant for life may I'edeem :
Playford v. Playford, i Hare, 546 ; Aynsley v. Read, 1 Dick. 249.
But a remainderman cannot redeem without the consent of the tenant for life
if the latter has procured an assignment of the mortgage : Rafferty v. King, 1
Keen, 601.
A jointress and a dovsrress may redeem : Howard v. Harris, 1 Vem. 33 ;
Fisher, 307.
The guardian of an infant heir and committee of a lunatic may redeem out of
rents and profits : Palmer v. Danhy, Free. Oh. 137 ; Ex parte Orimstone, Amb.
706.
Parties.
No puisne incumbrancer can redeem a prior mortgagee adversely without
bringing the mortgagor before the Court : Fell v. Brown, 2 Bro. C. C. 276 ; Palk
V. Clinton, 12 Ves. 48.
Therefore, in a suit by the second mortgagee to redeem the first, the mortgagor
is a necessary party.
But although a second mortgagee seeking to redeem the first must make the
mortgagor, or his heir, a party, he may foreclose the mortgagor and third mort-
gagee without bringing the first mortgagee before the Court : Richards v. Cooper,
5 Beav. 304 ; Arnold v. Bainhrigge, 2 De G. F. & J. 92.
In the latter case if the prior mortgagee be made a party, the second mortgagor
must offer to redeem him : Gordon v. Horsfall, 5 Moo. 393 ; 11 Jur. 569.
See Parties, ante, p. 8.
Offer to redeem.
A mortgagor cannot make a mortgagee a party to a suit in respect of his mort-
gage estate without offering to redeem him : Dalton v. Hayter, 7 Beav. 313, 319 ;
Inman v. Wearing, 3 De G. & Sm. 729.
But It is not usual to insert in the decree the pit's offer to redeem : Jnman v.
Wearing, supra.
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MORTaAGES. 421
Time foe Eedemption — Moetgagee in Possession.
When a mortgagee has obtained possession or receipt of the profits of any land,
or the receipt of any rent comprised in his mortgage, the mortgagor or person
claiming through him shall not bring a suit to redeem but within twenty years
next after the time at which, the mortgagee obtained such, possession or receipt,
unless in the meantime an acknowledgment of the title of the mortgagor has
been giyen : 3 & 4 Will. 4. c. 27, s. 28.
But the following provisions of the " Eeal Property Limitation Act, 1874,"
come into operation on the 1st January, 1879 : —
" Where a mortgagee shall have obtained the possession or receipt of the profits
of any land or the receipt of any rent comprised in his mortgage, the mortgagor,
or any person claiming through him, shall not bring any action or suit to redeem
the mortgage but within twelve years next after the time at which the mort-
gagee obtained such possession or receipt, unless in the meantime an acknowledg-
ment in writing of the title of the mortgagor or of his right to redemption shall
have been given to the mortgagor or some person claiming his estate, or to the
agent of such mortgagor or person, signed by the mortgagee or the person claim-
ing through him": 37 & 38 Vict. c. 57, s. 7.
" And in such case no such action or suit shall be brought but within twelve
years next after the time at which such acknowledgment, or the last of such
acknowledgments, if more than one, was given " ■ Ibid.
" And where there shall be more than one mortgagor or more than one person
claiming through the mortgagor or mortgagors, such acknowledgment, if given to
any of such mortgagors or persons, or his or their agent, shall be as effectual as if
the same had been given to all such mortgagors or persons ; but where there shall
be more than one mortgagee, or more than one person claiming the estate or interest
of the mortgagee or mortgagees, such acknowledgment signed by one or more of such
mortgagees or persons, shall be effectual only as against the party or parties signing
as aforesaid, and the person or persons claiming any part of the mortgage money or
land or rent by, from, or under him or them, and any person or persons entitled
to any estate or estates, interest or interests, to take effect after or in defeasance
of his or their estate or estates, interest or interests, and shall not operate to give
to the mortgagor or mortgagors a right to redeem the mortgage as against the
person or persons entitled to any other undivided or divided part of the money or
land or rent" : Ibid.
" And where such of the mortgagees or persons aforesaid as shall have given
such acknowledgment shall be entitled to a divided part of the land or rent com-
prised in the mortgage, or some estate or interest therein', and not to any ascertained
part of the mortgage money, the mortgagor or mortgagors shall be entitled to
redeem the same divided part of the land or rent on payment with interest of the
part of the mortgage money which shall bear the same proportion to the whole of
the mortgage money as the value of such divided part of the land or rent shall
bear to the value of the whole of the land or rent comprised in the mortgage " :
Ibid.
"No action or suit or other proceeding shall be brought to recover any sum of
money secured by any mortgage, judgment, or lien, or otherwise charged upon or
payable out of any land or rent at Law or in Equity, or any legacy, but within
twelve years next after a present right to receive the same shall have accrued to
some person capable of giving a discharge for or release of the same, unless in the
meantime some part of the principal money, or some interest thereon, shall have
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422 MORTGAGES.
been paid, or some acknowledgment of the right thereto shall have been given
in writing signed by the person by whom the same shall be payable, or his agent,
to the person entitled thereto, or his agent ; and in such case no such action or
suit or proceeding shall be brought but within twelve years after such payment
or acknowledgment, or the last of such payments or acknowledgments, if more
than one, was given": 37 & 38 Vict. c. 57, s. &.
The possession of the mortgagee must under the 3 & 4 Will. 4, c. 27, have
been adverse during the whole period : Corbett v. Barker, 1 Anstr. 138 ; Syde
V. Dallaway, 2 Hare, 528.
'- So long as the mortgagor holds possession of any part of the estates no lapse of
time will bar his right: Fisher, 283.
Time will not run in the case of common mortgage until the day of redemption
has arrived, except in cases where an unreasonable time has been fixed : Fisher,
284:; ^Talbot v. Braddyl, 1 Vern. 183, 394.
Welsh mortgages are redeemable after any length of time until the mortgagee
has been fully paid and has held over for twenty years : Tates v. Ecmihly, 2 Atk.
360 ; Alderson v. White, 2 De G. & J. 97.
Suits fok Possession of Land bt Moetgagoe.
*' A mortgagor entitled for the time being to the possession or receipt of the
rents and profits of any land, as to which no notice of his intention to take
possession or to enter into the receipt of the rents and profits thereof shall have
been given by the mortgagee, may sue for such possession, or for the recovery of
such rents or profits, or to prevent or recover damages in respect of any trespass
or other wrong relative thereto, in his name only, unless the cause of action
arises upon a lease or other contract made by him jointly with any other
person" : Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 5.
Dismissal of Kedemption Suit.
If a mortgagor institutes a suit for the redemption of a legal mortgage, and it
is dismissed for any reason except want of prosecution, the dismissal operates as
a decree for foreclosure : Cons. Order, 23, r. 13 ; Oholmley v. Countess of Oxford,
2 Atk. 267 ; Inman v. Wearing, 3 De G. & Sm. 729 ; Farher v. Eousejield,
2 My. & K. 419 ; James v. James, L. E. 16 Eq. 153 ; Marshall v. Shrewsbury,
L. E. 10 Ch. 250.
But this rule has no application to the case of an equitable mortgage by deposit
of title deeds: Marshall v. Shrewsbury, L. E. 10 Ch. 250.
Benefit Building Societies.
Probable Duration of Society to be calculated.
The Pit by Ms bill admitting that he is not entitled to receive any-
thing in respect of profits on his twelve shares and a half in the Equit-
able Provident Association in the pleadings mentioned :
Let an account be taken of all subscriptions, redemption-moneys,
and other payments due and ovying and payable, and hereafter to
become due, ovying, and payable by the Pit as a member of the said
association to the Defts B., K., and C, as the trustees of the said asso-
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MORTGAGES. 423
elation, in respect of the said shares, under and by virtue of the
indenture dated, &c., and the rules and regulations of the said asso-
ciation therein also mentioned. And in taking the said account Let
the probable duration of the said association according to the said
rules and regulations be calculated ; Let all moneys which having
regard to such probable duration might at any time hereafter become
due from the Pit be considered as due at the time of taking such
account. Eefer to the taxing master to tax the Defts their costs of
this suit, &c. Let the total amount due to the said Defts for such
subscriptions, redemption-moneys, and other payments as aforesaid, and
costs, be certified. Let an account be taken of the moneys received
by the Defts from the sale of part of the premises and from the rents,
&c., and deduct the amount from the amount found due for subscrip-
tions, &c., and costs. Let the Pit pay to the Defts as the trustees of
the association the balance within six calendar months, &o. And
thereupon Let the Defts the trustees indorse a receipt or acknowledg-
ment of payment on the said indenture dated, &c., pursuant to the
Act of Parliament in that behalf, and according to the rules and regu-
lations of the sa;id association, and deliver up to the Pit all deeds, &c.
And thereupon also Let the Defts the trustees re-convey at the ex-
pense of the Pit the freehold hereditaments comprised in the said
indenture free and clear, &c. But in default of payment, &o., Pit's
bill to stand dismissed with costs, &c. — Liberty to apply. Mosley v.
Baker, 6 Hare, 87 ; 3 De Gr. M.' & G. 1032 ; Seton, 481.
Duration of Society not to he calmlated — Bonuses.
Let an account be taken of all subsori'ptioiis, redemption-moneys,
and other payments which upon the 21st day of August, 1855 [the
d^te of payment under protest by Pit] were due, owing, and payable
by the Pit as a member of the society in the bUl mentioned to the
Defts the trustees of the said society in respect of the Pit's thirty-six
shares in the said society under and by virtue of the indenture dated,
&c., in the bill mentioned, and the rules and regulations of the said
society therein also mentioned. And in taking the said account the
longest period during which the said society could possibly last having
regard to its net assets, and the amount of monthly subscriptions and
redemption-moneys then still continuing payable, and to the number
of shares in the said society then to be provided for is to be calculated.
And the Pit is to be charged with all subscriptions and redemption-
moneys which would, on the 21st August, 1855, become due and pay-
able by him, assuming the said society to endure for the whole of that
period, such moneys to be treated as a debt then personally due from
him : Declare that the Pit was entitled on the said 21st August, 1866,
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424 MORTGAGES.
to tLe same share of profits or bonus in respect of Lis said shares as
was at that time allowed by the said society or the directors thereof to
withdrawing members. Eefer to the taxing master to tax the Pit his
costs of suit, including the costs of taking the account hereby directed
And in taking the said account the Pit is to be credited with the sum
of £23 on each of his shares, being the amount of bonus payable to the
withdrawing member on the said 21st August, 1855, and with the
amount of the said costs. Let the Pit pay to the Defts as the trustees
of the said society what if anything shall be certified to be due to
them for such subscriptions, redemption-moneys, and other payments,
after deducting the said share of profits or bonus and costs within one
calendar month, &c., at such time and place, &c. In default of pay-
ment Pit's bill to be dismissed, &c.
And in case it shall appear that the sum of £1007 16«. 3d. and
£5 5s. for costs paid by the Pit to the Defts on the 21st August, 1855,
exceeded the amount which was on that day due from the Pit to the
Defts, Let the amount of such excess be certified. And in that case.
Let the Defts the trustees within one calendar month after the date of
the chief clerk's certificate pay to the Pit out of the funds and moneys
of the said association the amount which shall be certified to have been
unpaid with interest thereon (less the amount of the Pit's costs to be
taxed as aforesaid) after the rate of £4 per cent, per annum from the
21st day of August, 1853, to the day of payment. — Liberty to apply.
Archer v. Harrison, 7 De G. M. & G. 404 ; Seton, 483.
Benefit Building Societies.
The Building Societies Acts, 1874 and 1875 (37 & 38 Vict. c. 42 ; 38 & 39
Vict. c. 9).
Any number of persons may establish a society under these Acts, either termi-
ijating or permanent, for the purpose of raising by the subscriptions of the
members a stock or fund for making advances to members out of the funds of the
society upon security of freehold, copyhold, or leasehold estate, by way of mort-
gage ; and any society under these Acts shall, so far as is necessary for the said
purpose, have power to hold land with the right of foreclosure, and may from
time to time raise funds by the issue of shares of one or more denominations,
either paid up w^ full or to be paid by periodical or other subscriptions, and with
or without accuniulating interest, and may repay such funds when no longer
required for the purposes of the society : 37 & 38 Vict. c. 42, s. 13.
But any land to which any such society may become absolutely entitled by
foreclosure, or by surrender, or other extinguishment of the right of redemption,
shall, as soon afterwards as may be conveniently practicable, be sold or converted
into money : Ibid.
The liability of any member of any society in respect of any share upon which
no advance has been made, shall be limited to the amount actually paid or in
arrear on such share, and in respect of any share upon which an advance has been
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MORTGAGES. 425
made, shall be limited to the amount payable thereon imder any mortgage or
other security, or under the rules of the society : 37 & 38 Vict. c. 42, s. 14.
Unless there is a provision in the deed that the payments in case of sale or
redemption are to be calculated- according to the probable duration of the society
the direction will be to ascertain the longest period during which the society can
possaiy last : Mosley v. Baker, 6 Hare 87 ; 3 De G. M. & G. 1032 ; Order,
p. 422 ; Archer v. Harrison, 7 De G. M. & G. 404 ; Order, p. 423 ; Fleming v.
Self, 3 De G. M. & G. 997.
If according to the rules the mortgagor become entitled upon redemption to
bonus or profits on his shares, he will on redemption be entitled to credit for
the same amount of bonus as had been paid to withdrawing members : Fleming
V. Self, supra ; see also Thompson v. Hudson, L. E. 2 Ch. 255.
As to the rebate or discount to be allowed in respect of subscriptions not due at
the time of a sale made under the provisions of the mortgage deed : see Matterson
V. ElderfiMd, L. E. 4 Ch. 207.
In a redemption suit by a member of a building society, the pits may be
ordered to pay a sum foimd due from him to the society, though it may be in
excess of the amount secured by the mortgage : Eandley v. Farmer, 29 Beav.
362. '
The mortgagor cannot redeem without paying the fines which are properly
due from him : Parher v. Butcher, L. E. 3 Eq. 762 ; see also Farmer v. Qiles, 8
W. E. 649; Ex parte Osborne, L. E. 10 Ch. 41.
As to the liabilities under the Winding-up Acts of advanced and unadvanced
shareholders in benefit building societies : see Doncaster Building Society, L. E.
3 Eq. 458 ; L. R. 4 Eq. 579 ; Victoria Benefit Building Society, L. E. 9 Eq. 597.
After a mortgage by a member of a building society to the trustees of that
society, and an equitable charge in favour of the pit, the defts, the trustees of
another similar society, paid off the first mortgage, and received the deeds without
notice of the pit's charge : — Held, that the defts had a better equity than the pit,
and that the legal estate had passed to the defts : Pease v. Jackson, L. E. 3 Ch. 576.
A benefit building society has no power to borrow money unless its rules
specially authorize it to do so : Be National Benefit Building Society, L. R. 5 Ch.
309.
Welsh Mortgage.
Bedemjption Suit.
Declaee that according to the terms of the mortgage deed the Pit is
entitled to the redemption of the two houses, &c.
Let an account be taken of the rents of the said houses received by
the Deft or William Hambly the mortgagee, such rents to be applied
in paying the interest, and then in sinking the principal, and annual
rests to be made. Upon the Pits paying to the Deft what shall appear
due to him for principal, interest, and costs the Deft is to re-convey
the mortgaged premises to the Pit, and deliver up possession, &c.
Tales V. Hambly, 2 Atk. 359.
In a Welsh mortgage the estate is conveyed absolutely to the creditor with-
out condition, and there is no covenant on the part of the mortgagor to pay :
Fisher, 8.
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426 MORTGAGES.
The security carries a right to redeem but none to foreclose: Balfe v. Lord, 2
D. & "War. 480.
No time is limited for redemption, but the mortgagee is left to pay himself the
sum for which the estate is pledged out of the rents and profits of the estate :
Fenwick v. Heed, 1 Mer. 125 ; Yates v. EarrMy, 2 Atk. 359 ; Order, S'wpra ,
p. 425 ; Alderson v. White, 2 De G. & J. 97.
If there is a covenant to pay the principal and interest by a certain time, and
no stipulation for the receipt of the rents and profits by the mortgagee, the security
will not have the character of a Welsh mortgage : Fisher, 9.
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CHAPTER XXV.
SPECIFIC PEEFOEMANCE.
Suit hy Vendor — Contract disputed. ■
Declare that the agreement dated, (fee, in the pleadings men-
tioned ought to be specifically performed and carried into execution,
and order and decree the same accordingly. Let an inquiry be made
whether a good title can be made to the lands [messuages, heredita-
ments] and premises situate, &c., in the said agreement mentioned.
Adjourn further consideration. — Liberty to apply. Stevens v. Gwppy,
3 Kuss. 182.
Suit hy Vendor — Title alone in dispute — Common Reference.
Declare that the agreement dated, &o., in the pleadings mentioned
ought to be specifically performed and carried into execution in case a
good title can be made to the hereditaments comprised therein, and
order and decree the same accordingly. Let the following inquiries be
made : (1) Whether a good title can be made to the lands [messuages,
hereditaments] and premises situate, &o., in the said agreement men-
tioned. And in case it shall appear that a good title can be made to the
said lands, (2) an inquiry -when it was first shewn that such good
title could be made. Adjourn further consideration. — Liberty to apply.
Gibhins v. Nwth Eastern By. Co., 11 Beav. 6.
Suit by Vendor — Decree after Order directing Inquiries as to Title, and
after Certificate finding good Title.
Let interest be computed at the rate of £ — per cent, per annum on
the sum of £ — , the purchase-money for the premises comprised in the
said agreement dated, &c. \[If costs are given : Let the Pit's costs of this
suit be taxed by the taxing master.] Let an account be taken of the
rents and profits of the said premises received by the Pits, or any of
them, or by any other person or persons, by the order or for the use
of the Pits or any of them. Let what shall appear due on the said
account of rents and profits be deducted from the amount of the said
purchase-money and interest [and costs]. Upon the Pits executing a
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428 SPECIFIC PBRFOEMANCE.
proper conveyance [assignment, or surrender] of the said premises to
the Deft, or to whom he shall appoint, according to the said agreement
(such conveyance, &o., to be settled by the judge in case the parties
diifer), and delivering to the Deft upon oath all deeds and writings
in their custody or power relating to the said premises. Let the Defts
pay the balance which shall be certified to be due to them in respect
of such purchase-money, interest [and costs] after such deduction as
aforesaid. — Liberty to apply.
Suit hy Vendor — Title declared to have heen accepted as to Part.
Declaee that the Deft has accepted the title of the Pit to the slip
of land called Mill Field in. the pleadings mentioned, being part of the
estate mentioned in the agreement dated, &c., in the Pit's bill men-
tioned, and that the Deft is bound to accept the title of the Pit to the
residue of the said estate, subject to the requisitions contained in the
opinion dated the 14th June, 1863, in the pleadings mentioned, which
were sent to the Pit's solicitors with the letter from the Deft's solici-
tors dated the 24th June, 1863, in the pleadings also mentioned ; and
subject also, as regards such part of the said purchased premises as at
the time of making the said agreement the Pit was under an agreement
to purchase from H. & B., the Pit making out such title as he was by
his agreement with his vendors bound to accept from them, and as
should be contained in a deed of enfranchisement of the copyhold part
of the said property. Declare that the Pit is entitled to a specific
performance of the said agreement provided that he can make a good
title to the property comprised in the said agreement subject to the
foregoing declarations.
Let the following inquiries be made :
(1.) An inquiry whether a good title can be made to the property
comprised in the said agreement other than and except the said strip
of land called Mill Field, having regard to the above declaration.
And in case it shall appear that such good title can be made, (2) when
it was first shewn that such good title could be made. Let the Deft
Spicer pay to the Pit Murray his costs of this suit up to and includ-
ing the hearing thereof. Eeserve further consideration. — Liberty to
apply. MoMmray v. Spicer (V.-O. M.), Jan. 17, 1868.
Suit hy Vendor — Preliminary Order on Motion — Inquiries as to Delivery
of Abstract and Objections.
Let the following inquiries be made : (1.) An inquiry whether the Pit
can make a good title to the property in question in this cause agreed to
be purchased by the Defts, having regard to the agreement for sale in
the pleadings mentioned, and when it was first shewn that such good
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SPECIFIC PERFORMANCE. 429
title could be made. (2.) An inquiry whether the Pit ever and when
delivered or caused to be delivered to the Defts an abstract of his title,
and whether the same was a perfect abstract, or in any and what
respects deficient ; and, if deficient, whether the same was ever and
when perfected. (3.) An inquiry whether the Defts ever, and, at what
time or times, delivered any and what objections to the Pit's title, or
made any and what requisitions upon or with respect to the same, or
the abstract thereof, or the conveyance or assignment of the property
in question agreed to be purchased by the Defts. (4.) An inquiry
whether the Pit at any or what time or times returned any and what
answers to such objections and requisitions. Usual directions for pro-
duction of deeds and documents on oath and esamination of parties on
interrogatories. Liberty to state any circumstances specially. Bem-
nant v. Holt, 1847, B. 33 ; Setoife 594.
Suit by Vendoi — Title accepted — Common Form.
Deolaee that the agreement in the Pits' bill mentioned dated, &c.,
ought to be specifically performed and carried into execution, and
order and decree the same accordingly. Let interest be computed at
the rate of £ — per cent, per annum on the sum of £ — , the purchase-
money for the premises comprised in the said agreement. [If costs are
given : and Let the Pits' costs of this suit be taxed by the taxing
master.] Let an account be taken of the rents and profits of the said
premises received by the Pits, or any of them, or by any other person
or persons by the order or for the use of the Pits or any of them. Let
what shall appear due on the said account of rents and profits be
deducted from the amount of the said purchase-money, interest [and
costs]. Upon the Pits executing a proper conveyance [assignment, or
surrender] of the said premises to the Deft, or to whom he shall appoint
according to the said agreement (such conveyance, &c., to be settled
by the judge in case the parties differ), and delivering to the Deft
upon oath all deeds and writings in their custody or power relating
to the said premises, Let the Deft pay the Pits the balance which
shall be certified to be due to them in respect of such purchase-money,
interest [and costs], after such deduction as aforesaid. — Liberty to
apply. Bichards v. Metropolitan By. Co. (M. E.), July 9, 1869.
Suit by Vendor — Title accepted — Special Inquiries.
Decree specific performance, &c., compute interest, &c. Let an
inquiry be made what was the value of the timber-trees, labour, seeds,
and dressings on the said estate on the — day of — . Let interest be
computed on such value from the — day of — , after the like rate of
interest, &c. Let an annual value by way of occupation rent be set
on the said estate from the — day of — , and Let the Pit be charged
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430 SPECIFIC PERFORMANCE.
therewith accordingly. Let the amount of such occupation rent be
deducted from the said purchase-money, and interest, &o. And upon
the Pit executing a proper conveyance, &c., and delivering, &c., the
Deft do pay to the Pit the balance which shall be certified to be due
after the deductions aforesaid. No costs on either side. — Liberty to
apply. Bradford v. Belfield, 1828, A. 1919 ; Seton, 609.
Suit by Vendor — Special Inquiries as to Bents — Occupation Bent.
Declare that the agreement dated the 20th June, 1853, should be
specifically performed and carried into execution, and order and decree
the same accordingly. Let the Deft S. on or before the 4th August
next, pay into Court to the credit of, &c., £72,600, being the balance of
his purchase-money. Let interest upon the said sum of £72,500 after
the rate of £4 per cent, per annum from the 31st July, 1847, to the
day of payment be computed, and Let the following inquiry and
account be made and taken. (1.) An inquiry when the Deft first
entered into the possession or the receipt of the rent and profits of
the leasehold part of the said estate, or any and what part thereof.
(2.) An account of the rents and profits of the freehold parts of the
estate and of the leasehold parts (other than those parts of which the
Deft had had the possession or been in receipt of the rents and profits)
accrued from the 31st July, 1847, down to the day of payment of the
£72,500 into the bank ; and also of such part of the leasehold of which
the said Deft should under inquiry No. 1 have been found to have
been in possession or in the receipt of the rents and profits from the
31st July, 1847, down to the day when the said Deft should be found
to have been in such possession or receipt, come to the hands of the
Pits, or either of them, or to the hands of any other person or persons,
&c. Let an annual charge by way of occupation rent be set on such
parts (if any) of the said estates of which the Pits, or either of them,
have been in occupation. Let what shall appear due on the said
account and in respect of such occupation rent be set off against
what shall appear due for such interest ^s aforesaid, and the balance
certified. If the balance be found payable by the Deft, Let the Deft
Shakspear within ten days after the date of the certificate pay such
balance into Court to the credit of, &o. And the last-mentioned
amount when paid in is not to be paid out without notice to the
Deft. But if the balance of the said account shall be certified to be
payable to the Deft, Let the Pits Sherwin and Hartopp within ten
days after the date of the certificate pay the same to the Deft, or as
he shall direct. Sherwin v. Shahspear, 5 De G. M. & G-. 517; L. E.
2 Eq. 957.
Note. — This order shews the variations made on appeal.
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SPECIFIC PEBPOEMANOE. 431
Suit by Vendor — Defective Ti&e as to Part — Compensation.
1. Let an inquiry be made whether the Pit can make a good title to
the estate in question agreed to be purchased by the Deft, or to any
and what part thereof. And in case it shall be found that the Pit can
make a good title to part only of the said estate, then (2) Let an inquiry-
be made whether such part (if any) of the said estate as to which the
Pit cannot make a good title is material to the enjoyment of the
remainder, and if such part of the said estate is not material, (3) an
inquiry what deduction ought to be made from the purchase-money in
respect thereof. Usual directions for production of deeds and examina-
tion of witnesses. Further coixsideration adjourned. — Liberty to apply.
Evans v. Hogg, 1805, A. 440.
Similar Decree- — Without prejudice.
Let an inquiry be made whether the Pit can make a good title to
the estate situate, &c. And in case it shall appear that the Pit can
make a good title to the said estate, except, &c., containing six acres,
&c., Let an inquiry be made whether the said six acres, &c., are
material to the possession and enjoyment of the rest of the estate, and
what compensation ought to be made to the Deft in respect of the
said six acres, .&c., in case it shall appear that the same are not
material to the possession and enjoyment of the said estate. And such
last-mentioned inquiry is to be without prejudice to the question
whether such six acres, &c., are material to the possession and enjoy-
ment of the rest of the said estate. Further consideration adjourned. —
Liberty to apply. McQueen v. Farquhar, 11 Ves. 467 ; Seton, 618.
Suit by Vendor — Mistake.
The Court being of opinion that the Pit did not intend by the
indenture of the 13th February 1866, in the pleadings mentioned, to
convey to the Deft more than the piece of land upon which the two
houses, Nos. 1 and 2, Park Terrace, in the pleadings mentioned, are
built, together with the outbuildings, yards, and appurtenances to the
said houses to the depth of 111 feet from the high road to Teddington
village, and with a right of way at the rear of the said premises of
the width of ten feet : And the Court offering to the Deft his option
either to rescind the contract for the said sale or to rectify the said
conveyance, and the Deft by his counsel electing that the said con-
veyance should be rectified : Declare that the beneficial interest in so
much of the said hereditaments comprised in the said indenture as
was not intended to be conveyed as aforesaid did not pass thereby,
and that the Deft is a trustee for the Pit, within the meaning of the
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432 SPECIFIC PERFORMANCE.
Trustee Act, 1850, of the legal estate of and in such portion of the
said hereditaments as was not intended to be so conveyed. Let the
Deft execute a reconveyance of such portion of the said hereditaments
to the Pit, or as he shall direct, such reconveyance to be settled by the
judge in case the parties differ. No order as to costs. — Liberty to
apply. Harris v. Pepperell, L. E. 6 Eq. 1.
Suit hy Vendor — Specific Performance — Parol Variation.
Declaee that the Pits are entitled to a specific performance of the
agreement in the pleadings mentioned. And the Pits by their counsel
now undertaking to pay for the timber (if any) taken by the Pits
upon the land in question, and to pay the expenses in the cross deposi-
tion of John Griffin mentioned to have been understood between
himself and the Pits' agent, if not yet paid Let the agreement
in the pleadings mentioned be specifically performed and carried into
execution. Eefer it to the taxing master to tax the Pits their costs of
suit, and to ascertain the value of the timber (if any) taken by the
Pits on the piece of land in the pleadings mentioned, and the amount
of the aforesaid expenses in case the parties differ. Let the Deft pay
to the Pits their costs of this suit. Let the injunction granted in this
suit be continued. — Liberty to apply. London and Birmingham My. Co.
V. Winter, 1 Or. & Ph. 67.
Suit hy Vendor-^Default hy Purchaser — lAen — Sale.
It being admitted by the answer of the Deft that there are no assets
of E. M. P. for the payment of purchase-money, interest, and costs, and
his other debts, and the Deft C. P. the heir-at-law, declining to
complete the purchase at his own expense. Declare that the Pit has
a lien upon the hereditaments and premises in the pleadings men-
tioned for the amount of such purchase-money, interest, and costs.
Let the said hereditaments and premises be sold with the approba-
tion of the judge, and the money to arise by the sale paid into the
Court to the credit of the cause, and be applied in satisfaction of the
purchase-money, interest, and costs under the decree dated the 3rd
March, 1843, and the Pits' costs of this suit. Tax the Pits their said
costs. Declare that the Pits are entitled to stand as judgment credi-
tors of the said E. M. P. under the former decree for the amount (if
any) by which the purchase-money shall be insufficient to pay the
principal, interest, and costs payable under the said decree. Defts to
have their costs out of the estate of E. M. P. Further consideration
reserved. — Liberty to apply. Duloe of Beaufort v. Philipps, 1 De G.
& Sm. 321.
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SPECIFIC PEBPORMANCE. 433
Suit by Vendor — Default hy Purchaser — Contract rescinded — Damages.
Let the contract mentioned in the pleadings of the first-mentioned
canse, and set forth in the 3rd, 6th, and 7th paragraphs to the Pits'
bill therein, he rescinded. Let all further proceedings in the canse be
stayed except as to any application which may be made to this Court
to award and assess the damages which the Pits have sustained by
reason or in consequence of the breach of the said contract. Let the
Deft Meredith pay to the Pits their costs of this application, to be
taxed, &c. Siueet v. Meredith, 4 Giff. 207.
Suit by Vendor — Bailway Company — Title accepted — Payment into Court.
The 'Defts the Metropolitan Eailway Company by their counsel
declaring themselves content with the title, &c.. Declare that the
agreement dated, &c., in the Pits' bill mentioned, ought to be speci-
fically performed and carried into execution, and order and decree
the same accordingly. Let the Defts the company, pursuant to the
provisions of the Lands Clauses Consolidation Act, 1845, on or before
the — day of — , pay the sum of £ — , the balance of the purchase-
money for the premises comprised in the said agreement, and also
interest at the rate of £ — per cent, per annum from the — day of —
till the day of payment (the amount to be verified by affidavit) into
Court to the credit of Ex parte The Metropolitan Eailway Company.
In the Matter of the Trusts of the Settlement, dated, &o., Let the Defts
the company pay to the Plaintiff his costs of this suit, to be taxed by
the taxing master in case the parties differ. — Liberty to apply. Grey
V. Metropolitan By. Co. (M. E.), March 5, 1868 ; Small v. Metropolitan
By. Co. (M.E.), March 11, 1870.
Suit by Vendor — Bailway Company — Lien.
Declare that the agreement dated the 18th of October, 1864, in the
pleadings mentioned, ought to be specifically performed and carried
into execution, and order and decree the same accordingly. Let the
Defts the Eailway Company, on or before the 6th of February, 1868,
pay to John Deverell, the treasurer of "William Symonds' Charity in
the bill mentioned, the principal sum of £1364, the purchase-money
for the hereditaments comprised in the said agreement, together with
interest at the rate of £5 per cent, per annum from the 25th of
March, 1866, until payment. Let, upon such payment being made, and
upon payment of the costs hereinafter directed to be taxed, the Pits
or other the trustees for the time being of the said charity, execute
and deliver a proper conveyance of the premises comprised in the said
agreement to the Defts, the Eailway Company, or to whom they shall
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434 SPECIFIC PERFORMANCE.
appoint, such coaveyance to be settled, &c. and deliver up all deeds,
&o. Let the Defts the Eailway Company pay to the Pits their costs
of suit, to be taxed, &o., and to include the costs mentioned in the 5th
paragraph of the agreement of the 18th of October, 1864. Declare
that the Pits or other the trustees for the time being of the said charity-
are entitled to a lien upon the hereditaments comprised in the said
agreement in respect of the said purchase-money, together with in-
terest thereon at the rate of £6 per cent, per annum from the 26th
■of March, 1866, until payment, as also in respect of the Pit's costs
aforesaid. In default of payment the Pits or other the trustees for the
time being to be at liberty to apply to the Court to enforce such lien
as they may be advised. — General liberty to apply. BisJwp of Win-
chester V. Mid-Hcmts By. Ca., L. E. 5 Eq. 17.
Suit by Vendor — Bailway Company — Lien — Sale.
Declare that agreement should be specifically performed. — Direc-
tions for payment and conveyance as in last order. — Declare that
the Pit has a lien as unpaid vendor on the lands in the pleadings
mentioned for the principal money and interest in the pleadings men-
tioned, or for so much thereof as shall not be otherwise paid by the
company, and that the said lien ought, if necessary, to be enforced by
sale of the said lands or otherwise under the direction of the judge.
Let an inquiry be made what is the amount due to the Pit for such
principal money and interest and for costs of" this suit (to be taxed,
&c.). Let the Defts the company pay the amount certified to be due
into Court to the credit of this cause within six months after the date
of the chief clerk's certificate. In default of payment Let the lands be
sold with the approbation of the judge. Costs of Deft H. to be taxed
and paid by the Pit and included in his own. — Further consideration
adjourned. — Liberty to apply. Walker v. Ware, dc. By. Go., L. E.
1 Eq. 195.
Suit by Vendor' — Bailway Company — Lien— Liberty to apply.
Declare that the agreements dated, &c., ought to be specifically
performed, and that.the Stonehouse Company have accepted the Pit's
bills and waived their right to an inquiry. Let the company on or
before the — day of — pay the balance with interest at 5 per cent,
and Pit's cost of suit, to be taxed and paid by the Defts. Upon pay-
ment of the balance, interest, and costs, the Pit to convey, the convey-
ance to be settled, &c. Declare that the Pit is entitled as agaiiist
both companies to a lien on the estate and interest of the Pit in the
hereditaments comprised in the agreements for the said amounts. In
case the sums are not paid, the Pit to be at liberty to apply to rescind
the contracts, or the enforcement of the lien by sale, for the appoint-
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SPECIFIC PERFORMANCE. 435
ment of a receiver, or injunction, as he shall be advised. Ma/rling
V. Stonehouse and Nailsworth By. Co., W. N. (1869), 60.
Suit hy Vendor — Title defective — Lien of Purchaser for Deposit and
Interest and Costs — BiU dismissed.
Let it be referred, &c., to tax the Deft his costs of suit, and Let the
same be paid by the Pit G. H. T. to the Deft C. B. M. Let the Pit
G. H. T., within fourteen days after service of this order (to be veri-
fied, &c.), pay to the Deft C. B. M the deposit of £450 paid by Deft
as deposit, and in part payment of the purchase-money, together with
interest at £4 per cent, per annum, from the — day of — until pay-
ment (the amount to be verified by affidavit). Declare that the Deft
is entitled to a lien on such estate or interest as the Pit has in the
hereditaments comprised in the agreement dated, &c., for the amount
of the said costs, and for the said £450 and interest as aforesaid. Liberty
for Deft to apply at Chambers to give efifeot to such declaration. And
thereupon Let the Pit's bill stand dismissed out of this Court. Turner
V. Marriott, L. E. 3 Eq. 744.
Suit by Pv/rchaser — Title accepted.
Common Order.
Declare that the agreement in the Pit's bill mentioned ought to be
specifically performed and carried into execution, and order and
decree the same accordingly. Let interest be computed at the rate of
£ — per cent, per annum on the sum of £ — , the purchase-money for
the premises comprised in the said agreement, from the — day of — .
Let an account be taken of the rents and profits of the said premises
received by the Defts or any of them, or by any other person or per-
sons by the order or for the use of the Defts or any of them \if costs
are given : and Let the Pit's costs of this suit be taxed]. Let the
amount of the said rents and profits [and costs] be deducted from the
said principal money and interest. Upon the Pit paying to the Defts
the balance which shall be certified to be due to them in respect of
such principal and interest after such deduction as aforesaid. Let the
Defts execute a proper conveyance [assignment, or surrender] of the
said premises to the Pit, or to whom he shall appoint, and deliver to
the Pit upon oath all deeds and writings in their custody or power
relating to the said premises. — Liberty to apply.
Suit hy Purchaser — Title accepted — Abatement for Deficiency.
Declaee that the Pit is entitled to specific performance of the agree-
ment, &'c., and to an abatement from the purchase-money and interest,
but to the amount only of what would be the worth of the deficiency
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436 SPECIFIC PERFOBMANCB.
of the soil mentioned in the pleadings, covered with wood, after
deducting the value of the wood thereon, and decree the same accord-
ingly. Let such abatement be settled by the judge. Compute interest
on the residue of the purchase-money. Upon Pit paying to the Defts
the amount certified to be due after such abatement, Let the Defts
convey, &o. Hill v. Buckley, 17 Vee. 394 ; Seton, 619,
Suiit by Purchaser — Limited Interest — Misrepresentation — Compensation.
Declare that the Pit is entitled to a specific performance of the
agreement in the Pit's bill mentioned against the Deft to the extent
of all the interest of J. S. in the said bill named in the property com-
prised in the said agreement (being the said J. S.'s estate therein for
the life of H. W. in the pleadings named), and for such estate as by
the curtesy he may become entitled to therein ; and that such agree-
ment ought to be specifically performed and carried into execution,
and order and decree the same accordingly. Let an inquiry be made
what is the amount to be paid by the Pit for the purchase-money of
the said property comprised in the said agreement for the said in-
terest of the said J. S., having regard to the declaration aforesaid.
Let an account be taken of the rents and profits of the said premises
received by the said Deft or by any other person or persons by the order
or for the use of the Deft accrued since the 1st May, -1868, the date
fixed for the completion of such purchase. Let the amount of the said
rents and profits be deducted from the amount of purchase-money and
from the amount of interest thereon at the rate of £5 per cent, per
annum from the said 1st May, 1868, the balance to be certified. Let
the Pit pay to the Deft the amount of such balance with subsequent
interest thereon at the same rate. Let, upon such payment being
made, the Deft and all proper parties execute a proper conveyance
of the said premises for the said estate of the said J. S. therein to the
Pit, or to whom he shall appoint, free from incumbrances, such con-
veyance to be settled by the judge. Deft to pay Pit's costs of suit. — ■
Liberty to apply. Barnes v. Wood, L. E. 8 Eq. 424.
Suit by Purchaser — Defective Title— Lien — Inquiries.
The Deft admitting that a good title cannot be made, declare that
the Pit is entitled to a lien on such estate or interest as the Deft has
in any of the property and effects mentioned in the agreement to
secure the repayment of all moneys paid by him on the faith of and
pursuant to the agreement, together with his costs. — Inquiry, what
moneys have been expended by the Pit.' — Inquiry under what circum-
stances the mill was closed by the Pit, and whether there has been
any deterioration of the premises, and to what amount and under
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SPECIFIC PEBFOEMANCE. 437
wbat circumstances. Deft to pay costs up to hearing. Continue the
injunction. Adjourn further consideration. Middletmi v. Magnay,
2 H. & M. 237.
Suit hy Lessor.
Declare that the agreement dated, &c., ought to be specifically
performed, &c. Upon the Pit executing a lease to the Deft of the
premises in the Pit's bill mentioned according to the terms of the said
agreement, and tendering the said lease to the Deft, Let the Deft
execute a counterpart thereof, such lease to be settled by the judge in
case the parties differ.
iSiMt'i hy Lessor — Building Contract — Damages.
Let the Plt-s' bill stand dismissed as against the Deft Company,
Limited, without costs. Declare that the agreement in the Pits' bill
mentioned dated the 22nd of October, 1861, ought to be specifically
performed by the remaining Defts, and carried into execution, and
order and decree the same accordingly. Let a proper lease of the here-
ditaments comprised in the said agreement be executed by the Pits to
the said remaining Defts. Let the said Defts execute a counterpart of
the said lease to the Pits, such lease to be settled by the judge in case
the parties differ. Let an inquiry be made whether any and what
damages have been sustained by reason of the said remaining Defts
not having specifically performed their agreement to erect good and
substantial buildings as in such agreement provided. Let the said
remaining Defts within one month after the date of the chief clerk's
certificate pay to the Pits Kay and Dewhurst what if anything shall
be certified to be the amount of such damages. Let the Defts, except
the company, pay Pits' costs of suit. — Liberty to apply. Kay v.
Johnson, 2 H. & M. 118.
Suit hy Lessee.
DECitiEE that the agreement for a lease dated, &c., ought to be speci-
fically performed, &c., and order and decree the same accordingly.
Let the Deft execute a lease of the premises comprised in the said
agreement, at the yearly rent and subject to the covenants and stipu-
lations contained in the said agreement (such lease to be settled by the
judge in case the parties differ). Let the Pit execute to the Deft a
counterpart of the said lease. — Liberty to apply.
Suit hy Lessee — Repairs — Damages.
Declare that the agreement dated the 25 Teb., 1862, ought to be
specifically performed and carried into execution, and order and decree
the same accordingly. Let the Deft execute a lease, &c., to be settled.
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438 SPECIFIC PERFOEMANCB.
&c., and Let the Pit execute to the Deft a counterpart of such lease.
Let an inquiry be made whether the repairs referred to in the said
agreement and in the exhibits to the affidavit of the Pit filed the 14
June, 1862, marked A and B, have been executed by the Deft, and if
not what damage the Pit has sustained thereby. Let Defts Lawford
and Kelly pay to Pit Samuda his costs of suit to be taxed &c. Samuda
V. Lawford, 8 Jur. (N.S.) 739.
Sushand and Wife — Deed of Separation.
Declaee that the agreement dated the 5 July, 1866, in the pleadings
mentioned ought to be specifically performed and carried into execu-
tion, and order and decree the same accordingly. Let a proper deed
of separation containing all usual and proper clauses and to secure a
sum of £40 a year for the life of A. H. to commence from the date
of the said agreement, and to be paid by the Deft T. A. H. by equal
quarterly payments for the maintenance of his wife and child, be
settled by the judge, the costs of such deed to be borne by the Pit G.
and Deft T. A. H. in equal moieties, and Let such deed be executed
by the Pit G. and the Deft T. A. H. respectively. Let an account
be taken of the amount due in respect of the said annuity from the
— day of — . Let the Deft T. A. H. within fourteen days from the
date of the certificate pay to J. G., the next friend of the Pit, what
shall be certified to be due on taking the said account. Deft T. A. H.
to pay costs of suit. — Liberty to apply. Gibha v. Harding, L. E. 8 Eq.
490 ; L. E. 5 Ch. 336.
Note. — This order incorporates the variation made on appeal,
although in fact a distinct order was drawn upon the appeal.
Frame of Decree — Title.
I'here have teen two ways of framing a decree in a suit for specific performance.
The one was to declare that the pit was entitled, &c., if a good title could be
shewn, and then to direct a reference as to title. The other was, first, to refer
the title, and then to make the declaration that if a good title was shewn the
agreement ought to he specifically performed : Stevens v. Ouppy, 3 Euss. 182,
per Lord Eldon : Order, p. 427.
The declaration that pit is entitled to specific performance of an agreement " in
case a good title can he shewn " has been objected to : Clive v. Beaumont, 1 De G.
& Sm. 408. But that form of declaration is now generally adopted : see also Pitt
V. Davis, 3 Euss. 182, note.
And where by reason of the contract itself having been disputed, the cause
is heard hefore a reference is made as to title, the decree first declares that the pit
is entitled to specific performance, and then directs the reference as to title :
Gibhins v. North Eastern Metropolitan Asylum, 11 Beav. 5.
The terms of the general inquiry are not whether the vendor could make a good
title at the time of entering into the contract, but whether he can at the time of
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SPECIFIC PBEPOEMANCE. 439
the inquiry make such a title : Langford v. Pitt, 2 P. Wms. 629 ; Parr v. Love-
grove, 4 Drew. 170.
Where an inquiry is directed in general terms whether the vendor can make
a good title, it means a good title having regard to the terms of the contract :
Upperton v. NicMson, L. R. 6 Ch. 436, reversing S. C, L. R. 10 Bq. 228.
But if the vendor wishes to prevent objections which have heen waived before
the suit from being renewed under the inquiry, he should ask for a special decree
based upon such waiver : S. C.
" The inquiry when the title was first shewn " is only directed when the title
alone is in dispute : OibMns v. ^orth Eastern Metropolitan Asylum, 11 Beav. 5 ;
Morris v. Wilson, 5 Jur. (N.S.) 168.
The reference of title may extend to all that concerns the title, but not toother
matters : Jennings v. Eopton, 1 Madd. 211 ; Bennett v. Bees, 1 Keen, 405.
If the vendor can make a good title at any time before the result of the in-
quiry he will be entitled to a decree in his favour : Mortlock v. Buller, 10 Ves.
292.
And if when the cause comes on to be heard for further directions the defects in
title can be remedied, specific performance has been decreed : Baton v. Sogers,
6 Madd. 256.
But where the vendor has not been able to make out his title before the decree,
the point will have an important bearing upon the question of costs: Seton v.
Slade, 7 Ves. 279 (per Lord BIdon). And the rule is that a vendor is not entitled
to costs except from the time when his title is certified to be good : Wilkinson v.
Hartley, 15 Beav. 183 ; Wynn v. Morgan, 7 Ves. 206.
But time where a good title is shewii is not conclusive upon the question of
costs, being subject to the general rule that the costs must be paid by the person
who caused the litigation : Dan. 5th ed. 852 ; Monro v. Taylor, 8 Mac. & G-. 713,
725 ; Ahhott v. Sworder, 4 De Gr. & Sm. 448 ; Parr v. Lovegrove, 4 Drew. 170.
In consequence of the rule as to costs, the order, except where the contract is
disputed, directs an inquiry at what time the good title was shewn.
In some cases the order for inquiry is, whether a good title can be made " sub-
ject to the conditions of sale": Wood v. Machin, 5 Hare, 158, 162.
So, too, an inquiry may be directed whether the deft ever and when required
of the pit any and what evidence in proof of a point material to the title : Bennett
V. Bees, 1 Keen, 408.
The Court will not in general permit the question whether a good title can he
made or not to be argued before it in the first instance ; even though no objections
to the title are stated in the pleadings. Dan. 5th ed. 851 ; Jenkins v. Hiles, 6 Ves.
654.
A purchaser may preclude himself from his right to a reference as to title by
exercising right of ownership over the property : Fleetwood v. Green, 15 Ves.
594 ; Anspack v. Noel, 1 Madd. 310, 315 ; Brown v, Stenson, 24 Beav. 631.
Objections to the abstract of title must be made in a reasonable time or they
will be considered waived : Brown v. Stenson, 24 Beav. 631.
But if a vendor does not deliver the abstract of title within the time specified
in the conditions of sale, the purchaser is not bound to send in his objections
within the time limited for that purpose, even though it is stipulated that time
in this respect is to be of the essence of the contract : Upperton v. Nickolsrm,
L. R. 6 Ch. 436.
An inquiry as to title might have been directed before or after answer on motion
by consent ; and after answer on motion adversely, if it appears clearly that the
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440 SPECIFIC PBEFORMANCE.
title is the only question in dispute : Bennett v. Se-es, 1 Keen, 405 ; Dan. 5th ed.
1112 ; JReid v. Don Pedro North Del Rey Gold Mining Go., 9 Jur. (N.S.) 865.
But all questions affecting the validity of the contract, or whether it is one
which can be enforced, can only be determined at the hearing : Eood v. Oglander,
34 Beav. 518.
The Court will not compel a purchaser to take a doubtful title : Shapland v.
Smith, 1 Bro. 0. C. 75 ; VoMcouver v. Bliss, 11 Ves. 458, 465 ; Sicker v. Fish,
2 V. & B. 145 ; Pyrke v. Waddingham, 10 Hare, 1.
If the doubts as to a title arise upon a question connected with the general law,
the Court is to judge whether the general law on the point is settled or not :
Pyrhe v. Waddingham, 10 Hare, 1.
If the law be not settled, or if doubts as to the title may be affected by ex-
trinsic circumstances which neither the purchaser nor the Court can satisfactorily
investigate, specific performance will be refused; S. C. ; see also Mullings v.
Trinder, L. B. 10 Eq. 454.
And where a bill by vendor for specific performance has been dismissed in the
Court below upon a question of title, it requires a strong case for the Court of
Appeal to force the title upon the purchaser : Collier v. McBean, L. B. 1 Ch. 80 ;
12 Jur. (N.S.) 86.
But a purchaser must accept a title which appears good to the Court of Appeal,
although thought to be bad by the Court of first instance : Beioley v. Carter,
L. E. 4 Ch. 230.
The fact that one of the conveyancing counsel has reported adversely to the
title is not in itself sufiBcient to induce the Court to refuse specific performance :
Hamilton v. Buckmaster, L. R. 3 Eq. 323.
And where the vendor has entered into a contract for sale bond fide mistaking
his title and having a less interest than that contracted to be sold, the Court will
not enforce specific performance : Sowel v. George, 1 Madd. 1.
A vendor will be compelled to convey his interest, although imperfect, if the
purchaser choose to accept it without compensation : Dart, 4th ed. 974 ; Bradley
V. Muriton, 15 Beav. 460 ; Barrett v. Bing, 2 Sm. & Gr. 43 ; Lord Bolinghroke^s
Case, 1 Sch & Lef. 19 ; and to make good the contract out of any interest he has
subsequently acquired : Taylor v. Debar, 1 Ch. Ca. 274 ; Otter v. Lord Vaux,
1 K. & J. 650 ; 6 De G. M. & G. 638, cited in Dart, 4th ed. 741 ; and to obtain the
concurrence of proper parties : 1 Madd. 11 ; Crop v. Norton, 2 Atk. 74 ; Minton
V. Kirwood, L. E. 1 Eq. 449 ; affirmed, L. E. 3 Ch. 614.
In a decree for specific performance a direction that the vendor shall convey has
the same effect as a direction that the vendor and all other necessary parties shall
convey : Minton v. Kirwood, L. E. 3 Ch. 614.
But a vendor will not be ordered to procure the concurrence of parties whose
concurrence he has no right to require : Emery v. Ware, 8 Vcs. 505, 514 ; Eowel
v. George, 1 Madd. 1, 6 ; Thomas v. Bering, 1 Keen, 729.
A decree for specific performance of a contract cannot be accompanied by an
inquiry whether a matter which was a consideration for entering into the contract
has been or can be properly performed : Lamare v. Dixon, L. E. 6 H. L. 414.
Eight to Decree.
As a general rule specific performance of contracts respecting goods, chattels,
stock, choscs in action, and other things of a merely personal nature will not be
decreed : Story, 10th ed. vol, i. pp, 716-17.
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SPECIFIC PERFORMANCE. 441
But where pecuniary damages would not he an adequate consideration, specific
performance of contracts for sale of personal chattels will be decreed : Fahke v.
Gray, 5 Jur. (N.S.) 645 ; 4 Drew. 651, 658 ; Coquet v. GtTison, 33 Beav. 557 ;
JDarhey v. Whitiaker, 4 Drew. 134 ; Bowling v. Setjemann, 8 Jur. (N.S.) 538 ;
Cooper V. Hood, 26 Beav. 293; Charingbould v. Curtis, 21 L. J. (Cb.) 541;
Coquet V. Gibson, 33 Beav. 557.
And although specific performance of an agreement for the sale of the goodwill
of a business has been refused {Corslake v. Till, 1 Russ. 376), it has been
decreed where the goodwill was sold in connection with the property to which it
was attached : Barley v. Whittaker, 4 Drew. 134, 140.
So, too, in contracts of a different nature. Thus, where a covenant was made
in a lease of alum works to have a certain stock upon the premises specific per-
formance was decreed : Ward v. Duke of Brtckingliam, 3 Atk. 385 ; 10 Ves. 161 ;
Story, 10th ed. vol. i. p. 719.
In cases of covenants between landlord and tenant specific performance is
virtually enforced by an injunction being granted to prevent a breach of such
covenants.
Where a railway company undertook to build and maintain an archway on the
pleasure grounds of the pit, specific performance has been decreed : Siorer v. Great
Western Sy. Co., 2 Y. & 0. (Ch.) 48, 53.
Upon the like ground — inadequate remedy at law — specific performance has
been ordered of covenants for a lease : Fumival v. Carew, 3 Atk. 83, 87 ; Tritton
V. Foote, 2 Cox, 174; and other contracts relating to personal property.
So, too, in cases of covenant not to carry on a particular trade : Kemble v.
Kean, 6 Sim 633 ; Lumley v. Wagner, 6 Jur. 871.
As a general rule the Court of Chancery will not enforce the specific perform-
ance of a contract for the transfer of public stocks for the delivery of personal
chattels : Cudd v. Butter, 1 P. Wms. 570 ; Errington v. Aynesley, 2 Bro. C. C.
341.
But will order the specific delivery of a chattel the value of which is not to be
estimated by damages at law : Nufbrovm v. Tliornton, 10 Ves. 159.
And specific performance has been ordered of a contract for the purchase of
Government stock, where the delivery of the certificates was prayed by the bill :
Boloret v. Bothschild, 1 S. & S. 597.
Where the contract is to transfer shares in a particular concern, limited in
number and not easily procured in the market, specific ^performance has been
decreed : Buncro/t v. Mbrechf, 12 Sim. 199 ; Shaw v. Fisher, 2 De G. & Sm. 11 ;
Wynne v. Price, 3 De G. & Sm. 310.
And where the contract was to accept the transfer of particular shares, for
which no consideration had been paid, but which were liable to calls, specific
performance was decreed : Cheale v. Kenward, 3 De G. & J. 27.
A contract for the sale of an annuity payable out of the dividends of stock may
be enforced : Withy v. Cottle, 1 S. & S. 174.
Specific performance will not be decreed for the transfer of shares in a public
company when by means of transfer to some third party the privity of contract
between pit and deft is destroyed : Shaw v. Fisher, 5 De G. M. & G. 596.
Specific performance has also been ordered of a contract for the sale of shares,
notwithstanding the refusal of the directors to allow the transfer : PocHe v. Mid-
dleton, 29 Beav. 646.
The fact of a call, of which the purchaser has no notice, having been made at
the date of the purchase of shares does not invalidate the contract : Hawkins
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442 SPECIFIC PERFORMANCE.
V. Maltby, L. R. 3 Ch. 188, reversing V.-C. W., L. E. 4 Eq. 572; L. R. 4 Ch.
200.
Specific performance of covenants to rebuild or to repair have been refused, as
there can be full compensation at law : Moseley v. Virgin, 3 Ves. 184 ; Flint v.
Brandon, 8 Ves. 159 ; Moore v. Qreg, 12 Jur. 952 ; Kay v. Johnson, 2 H. & M.
118.
But a distinction has been drawn where the building or other work is by way of
easement or accommodation : Lytton v. Great Northern By. Co. 2 K. & J. 394 ;
Sanderson v. Gocherrmmth By. Co. 11 Beav. 497 ; Wdls v. Maxwell, 32 Beav.
408 ; 9 Jur. (N.S.) 1021.
As a general rule specific performance will not be decreed where the contract
is wholly or principally for the erection of buildings, but where the contract has
been partly performed, or the work is only a subsidiary term of the contract,
specific performance will be decreed : Dart, 4th ed. 905.
Specific performance will be decreed of express and even of implied contracts
where no actual injury has been sustained, but is only apprehended : 1 Madd.
Pr. Ch. 178, 179 ; Might v. Cook, 2 Ves. 619 ; Green v. Pigot, 1 Bro. Ch. 108.
It seems doubtful how far the Court can decree specific performance of a cove-
nant made by a husband that his wife shall do a particular act, e.g., convey his
property : Hall v. Hardy, 3 P. Wms. 189 ; Hovxll v. George, 1 Madd. 9 ; Emery
V. Ware, 8 Ves. 514 ; Mortloch v. BuUer, 10 Ves. 305 ; Morris v. Stephenson,
7 Ves. 4Y4.
An agreement between husband and wife living together, providing for their
future separation is illegal : Westmeath v. Westmeath, Jac. 126.
And the Court will not enforce an agreement for separation under which the
father divests himself of his proper authority over his children : St. John v. St.
John, 11 Ves. 532 ; Vansittart v. Vansittart, 2 De G. & J. 249.
Nor will the Court, enforce an agreement for separation without consideration,
or an agreement between husband and wife without the intervention of a tmstee,
unless the husband and wife are in a hostile position : Bateman v. Countess of
Boss, 1 Dow. 235.
But the Court will decree specific performance of an agreement of separation if
the provisions are not repugnant to the policy of law : Wilson v. Wilson, 1 H. L. C.
558 ; 5 H. L. 0. 40; Gibbs v. Harding, L. R. 8 Eq. 490 ; L. E. 5 Ch. 336;
Order, p. 438.
And there is no illegality in providing a fund for the maintenance of the
children : Gibhs v. Harding, supra. See also Hamilton v. Hector, L. R. 6 Ch. 701.
When an offer in writing is made by the owner to sell an estate on specified
terms, and this is unconditionally accepted, there is a binding contract which
neither party can vary. But until the proposition is accepted the owner is at
liberty to add new terms to his proposal : Story, 10th ed. vol. i. 734.
Upon a written request by an owner of freehold property to an estate agent to
procure a purchaser and advertise it at a certain price, the agent has no authority
to enter into an open contract for sale : Hamer v. Sharp, L. R. 19 Eq. 108.
Letters will not constitute an agreement which will be specifically performed,
unless the answer is a simple acceptance without the introduction of a new term :
Story, 10th Ed. vol. i. 734 ; Wright v. St. George, 12 Ir. Ch. 226 ; Oriental Inland
Steam Company v. Briggs, 8 Jur. (N.S.) 201. See also Orossley v. Maycoch,
L. R. 18 Eq. 160.
In order to satisfy the Statute of Frauds the cofitracting parties and the subject-
matter of the contract must bo clearly shown : Williams v. Lake, 2 E. & E. 349 ;
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SPECIFIC PERFORMANCE. 443
29 L. J. (Q.B.) 1 ; 9 Jur. (N.S.) 363 ; Morris v. Wilson, 5 Jur. (N.S.) 168 ;
Potter V. Duffidd, L. R. 18 Eq. 4; Gommins v. Scott, L. R. 20 Eq. 11.
If the parties are resident within the jurisdiction, it is. not necessary in order
to maintain a suit for the specific performance of a contract respecting land, that
the land should be situate within the jurisdiction of the Court : Penn v. Loi-d
Baltimore, 1 Ves. 444 ; Portarlington v. Soulby, 3 My. & K. 104 ; Archer v.
Preston, 1 Vern. 77 ; Jackson v. Petrie, 10 Ves. 164 ; Good v. Good, 33 Beav. 314.
The Court will decree specific performance of an agreement to mortgage,
although containing an absolute power of mortgage : Ashton v. Gorrigan, L. R.
13 Eq. 76 ; Herman v. Hodges, L. R. 17 Eq. 18.
As regards parol agreements, all interests in lands, tenements, and heredita-
ments, except leases for three years, not put in writing and signed, have only the
effect of leases on estates at will : The Statute of Frauds, 29 Car. 2, c. 3.
And actions in respect of such interests must be brought within one year from
the making of the contract, unless the agreement is in writing and signed : Ibid.
But the Court will enforce specific performance of a contract within the statute,
although not in writing, if the answer of the deft admits the parol agreement :
Att.-Otn. V. Sitwell, 1 Y. & 0. 583 ; Spurrier v. Fitzgerald, 6 Ves. 548.
If, however, the answer admits the parol agreement, but sets up the Statute of
Frauds as a defence, specific performance will not be decreed : Gooth v. Jackson,
6 Ves. 37, per Lord Eldon ; Powe v. Tweed, 15 Ves. 375 ; Blagden v. Bradbear,
12 Ves. 466, 471.
Where a deft admits an agreement, if he means to rely on the fact of its not
being in writing and signed, and so being invalid by reason of the Statute of
Frauds, he must say so ; otherwise he must be taken to mean that the admitted
agreement was a written agreement good under the statute, or else that on some
other ground it is binding on him. But where he denies or does not admit an
agreement, he need not plead the Statute of Frauds ; the burden of proof is alto-
gether on the pit, who must then produce a valid agreement capable of being
enforced : Ridgway v. Wha/rton, 3 De Gr. M. & G. 677.
Specific performance will be enforced of a parol contract, if such contract has
been partly carried into execution : Att.-Oen. v. Bay, 1 Ves. 221 ; Walker v.
Walker, 2 Atk. 100 ; Taylor v. Beech, 1 Ves. 297 ; Buckmaster v. Earrop, 7
Ves. 346 ; Mundy v. JolUffe, 5 My. & Cr. 167 ; Pain v. GoorrAs, 1 De G. & J.
34 ; LiUie v. Legh, 3 De G. & J. 204 ; ShilUheer v. Jarvis, 8 De G. M. & G. 79 ;
Farrall v. Davenport, 3 Gifl. 363.
So, too, if fraud has prevented the pit from complying with the statute :
Whitchurch v. Bevis, 2 Bro. C. C. 565 ; Morse v. Merest, 6 Madd. 26 ; Lincoln v.
Wright, 4 De G. & J. 16.
But payment of a deposit or of part of the purchase-money is not such an
execution of the contract as to take it out of the Statute of Frauds : Butcher
v. Butcher {per Sir William Grant), 9 Ves. 362. See also Glincm v. Gooke,
1 Sch. & Lef. 40.
In order to take a case out of the Statute of Frauds upon the ground of part
performance of a parol Contract, the contract must be proved to be clear and
definite in its terms: Glinan v. Goolce, supra; Forster v. Eah, 3 Ves. 712;
Price V. Saiusbury, 32 Beav. 446, 459.
And the general ground is, that nothing is to be considered as a part performance
which does not put the party into a situation which is a fraud upon him unless
the agreement is fully performed : Story, 10th ed. vol. i. p. 757, et seq.
If a man under a verbal agreement with a landlord for a certain interest in
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444 SPECIFIC PBEFORMANCE.
land, or under an expectation created or encouraged by the landlord tliat he shall
have a certain interest, takes possession of such land, with the consent of the
landlord ; and upon the faith of such promise or expectation, with the knowledge
of the landlord, and without objection by him, lays out money upon the land, a
Court of Equity will give effect to such promise or expectation : Eamsden v.
Dyson, L. E. 1 H. L. 129, 170 (per Lord Kingsdown). See also Gregory v. Mighell,
18 Ves. 328.
If, on the other hand, a tenant being in possession of land, and, knowing the
nature and extent of his interest, lays out money upon it in the hope and expec-
tation of an extended term, or an allowance for expenditure, then, if such hope or
expectation has not been created or encouraged by the landlord, the tenant has no
claim which law or equity can enforce : Bamsden v. Dyson, sjipra. See also'
Olavering's Case, 5 Ves. 690 ; Pilling v. Armitage, 12 Ves. 78 ; Bankart v.
Tennant, L. B. 10 Eq. 141, 146.
Where a pit alleges a written agreement with a parol variation in favour of
the deft, and offers to perform the agreement with the variation, the Court will
decree specific performance, although the deft insists upon the statute : Martin
V. Pycroft, 2 De G. M. & G. 785 ; Vouillon v. States, 2 Jnr. (N. S.) 847.
Where the defence to the suit is that by fraud or mistake the agreement is in
terms different from what the deft supposed it to be at the time of execution,
this, if proved, will negative the right to specific performance, except with a
variation : Dart, 4th ed. 949 ; Sugden, 14th ed. 215 ; Joynes v. Statham,
3 Atk. 888 ; Woollan v. Eearne, 7 Ves. 211 ; Marguis Townshend v. Stangroom,
6 Ves. 238 ; Wood v. Scarth, 1 Jur. (N. S.) 1107 ; 2 K. & J. 33 ; Wright v.
Goff, 2 Jur. (N. S.) 845.
The same rule holds good where the defence is that by fraud or mistake the
deft executed the agreement under a reasonable misapprehension as to its effects :
Dart, 4th ed. 947, citing Calverly v. Williams, 1 Ves. J. 210 ; Bigginson v.
Glomes, 15 Ves. 516 ; Olowes v. Higginson, 1 V. & B. 524 ; Mvanley v. Kinnaird,
2 Mac. & G. 8 ; Wood v. Scarth, 1 Jur. (N.S.) 1107 ; Neap v. Ahlott, 1 C. P.
Coop. 333 ; Swaisland v. Dearsley, 29 Beav. 430 ; Moxey v. Bigwood, 8 Jur.
(N.S.) 803.
And where the conduct of the vendor is suspicious and vexatious, specific per-
formance will not be decreed : Viney v. Chaplin, 2 De G. & J. 468.
A parol promise to vary the terms of the written agreement has been admitted
as a defence to a suit for specific performance : Glark v. Grant, 14 Ves. 519 ;
Micklethwaite v. Nightingale, 12 Jur. 638. See also Legal v. Miller, 2 Ves. 299 ;
Price V. Dyer, 17 Ves. 356.
The Court will admit parol evidence on the part of a deft in support of a varia-
tion in the agreement where fraud or mistake has been satisfactorily proved :
Joynes v. Statham., 3 Atk. 388 ; Tonmsend v. Stangroom, 6 Ves. 328 ; London
and Birmingham By. Co. v. Winter. See also Price v. Dyer, 17 Ves. 356 ;
Vouillon v. States, 2 Jur. (N.S.) 847 ; The London and Birmingham By. Co. v.
Winter, 1 Cr. & Ph. 57.
Where mistake is the defence set up, it must be clearly proved : Clay v. Buf-
ford, 14 Jur. 803.
Specific performance will not be decreed if the prior rights of other parties are
affected by it : Beed v. Don Pedro GoU Mining Co., 10 L. T. (N.S.) 668 ;, Har^
nett V. Yielding, 2 Sch. & Lef. 549.
Nor where there are mutual rights incapable of being enforced by an immediate
decree : Blacltett v. Bates, L. R. 1 Ch. 117, reversing S. C, 2 H. & M- 270.
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SPECIFIC PERFORMANCE. 445
The Court will not, as a general rule decree specific performance of agreements
for partnership : Sheffidd Gas Co. v. Harrison, 17 Beav. 294 ; Sichel v. Mosen-
thal, 30 Beav. 371; 8 Jur. (N.S.) 275; Scott y. Bayment, L. R. 7 Eq. 112;
Lindley on Partnership, 2nd ed. p. 947.
Where great hardship would result from enforcing specific performance the
Court has, in certain cases, refused to interfere : Peacock v. Penson, 11 Beav.
355 ; Eelling v. Lumley, 3 De Gr. & J. 493.
Nor will a contract be enforced which involves a breach of trust : Mortloch v.
Butter, 10 Ves. 292, 313 ; Ord v. Noel, 5 Madd. 438 ; Sneesby v. Thorne, 7 De
G. M. & Gr. 399 ; Shrewsbury By. Co. v. London and North Western By. Co.,
4 De G. M. & G. 115.
The Court will not decree speoiBc performance of part of a contract if unable to
enforce its material terms : Oervais v. Edwards, 2 D. & War. 80 ; Counter v.
Macpherson, 5 Moo. P. 0. 83 ; Paris Chocolate Co. v. Crystal Palace Co., 1 Jur.
(N.S.) 720 ; 3 Sm. & G. 119 ; South Wales By. Co. v. Wythes, 1 K. & .J. 186 ;
5 De G. M. & G. 880.
Nor a contract for sale where the price is to be fixed by arbitration, unless the
arbitrators have actually fixed the price : Darhey v. Whitaker, 4 Dr. 134.
The Court does not interfere to enforce contracts not founded upon valuable
consideration : Ex parte Pye, 18 Ves. 149 ; Ellison v. Ellison, 6 Ves. 662 ; Pul-
vertoft V. Pulvertoft, 18 Ves. 98 ; Edwards v. Jones, 1 My. & Cr. 226.
But will give effect to transfers and conveyances which have been completed
at law, although derived from voluntary acts : Ex parte Pye, 18 Ves. 149 ; Ed-
wards V. Jones, 1 My. & Or. 226 ; Donaldson v. Donaldson, Kay, 711 ; Eehewich
V. Manning, 1 De G. M. & G. 176.
Where the character and conditions of the property have so altered that the
terms of the contract are no longer applicable to the existing state of things,
specific performance will not be decreed : Story, 10th ed. vol i. p. 746 ; DuTce of
Bedford v. British Museum, 2 My. & K. 552.
And where the terms of the contract are such that the Court cannot super-
intend the execution so as to secure full performance on the part of the pit,
specific perfonnance will not be decreed : Story, 10th ed. vol. i. p. 782 ; Pelo v.
Bye U. By. Co., 9 L. T. 237 ; 1 H. & M. 468 ; South Wales By. Go. v. Wythes,
I K. & J. 186; 5 De G. M. & G. 880.
But in case of railway companies taking land under their compulsory powers,
neither want of mutuality nor want of consideration has been held to be a suflBcient
defence to a bill for specific performance : Bedford and Cambridge By. Co. v.
Stanley, 2 J. & H. 746.
A railway company after notice to treat has been given and the price of the
land fixed, is in the same position with regard to the landowner as an ordinary
purchaser, and may be compelled to complete their purchase : Harding v. Metro-
politan By. Co., L. R. 7 Oh. 154.
The Court has enforced against railway companies covenants in respect of
station accommodation : Hood v. North Eastern By. Co. L. R. 8 Eq. 666 ; L. R.
5 Ch. 525 ; and covenants to construct arches and suitable approaches : Storer
V. Chreat Western By. Co. 2 T. & 0. Ch. 49 ; covenants to construct roads and
wharves : Wilson v. Furness By. Co., L. R. 9 Eq. 28 ; and covenants to con-
struct roads and approaches : Sanderson v. Cockermouth and Workington By. Co.,
II Beav. 497 ; Baphael v. Thames Valley By. Co., L. R. 2 Ch. 147 ; Lytton v.
Great Northern By. Co. 2 K. & J. 394 j Greene v. West Cheshire By. Co., L. R.
13 Eq. 44.
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446 SPECIFIC PElRPOEMANCE.
Where a railway company having agreed to erect a station in a specified place
suhstituted one in another place, damages being considered a sufficient remedy,
an inquiry as to damages was directed instead of specific performance : Wilson v.
Northampton and Banbury Junction By. Co., L. E. 9 Ch. 279.
The Court will not decree against a railway company specific performance of an
agreement which involves the performance of continuous acts for an indefinite
period, such as working signals: Powell Duffryn Steam Coal Co. v. Taff Vale
By. Co., L. E. 9 Oh. 331.
An agreement for compromise of a suit cannot be enforced by motion in that
suit if the agreement extends to matters beyond the scope of the suit : Pryer v.
Qribble, L. E. 10 Ch. 534.
Sale op Land — Boot of Title — ^Eequisitions, &c. — 37 & 38
Vict. o. 78.
" In the completion of any contract of sale of land made after the 31st Decem-
ber, 1874, and subject to any stipulation to the contrary in the contract, forty
years shall be substituted as the period of commencement of title which a pur-
chaser may require in place of sixty years, the present period of such commence-
ment ; nevertheless earlier title than forty years may be required in cases similar
to those in which earlier title than sixty years may now be required " : " The
Vendor and Purchaser Act, 1874" (37 & 38 Vict. c. 78), s. 1.
And in the completion of any such contract, and subject to any stipulation to
the contrary in the contract, the obligations and rights of vendor and purchaser
shall be regulated by the rules stated in sect. 2 of the same Act.
" A vendor or purchaser of real or leasehold estate in England, or their repre-
sentatives respectively, may at any time or times and from time to time apply in
a summary way to a judge of the Court of Chancery in England in Chambers, in
respect of any requisitions or objections, or any claim for compensation, or any
other question arising out of or connected with the contract (not being a question
affecting the existence or validity of the contract), and the judge shall make such
order upon the application as to him shall appear just, and shall order how and
by whom all or any of the costs of and incident to the application shall be borne
and paid " : sect. 9. Vendors or purchasers of real or leasehold estate in Ireland
may, in like manner and for the same purpose, apply to a judge of the Court of
Chancery in Ireland : Ibid. See under section 9, Be Packman and Moss, L. E.
1 Ch. D. 214.
Mandatory Order.
The Court has jurisdiction to make any interlocutory order reasonably ancillary
to the administration of justice at the hearing : Smith v. Peters, L. E. 20 Eq.
.511.
And where an agreement had been entered into for the sale of a house at a
fixed price, and of the fixtures and furniture at a valuation, upon the refusal of
the vendor to permit the valuation, a mandatory order has been made to compel
the vendor to allow entry upon his premises for the purposes of the valuation :
S. 0. See also Kynaston v. East India Go., 3 Sw. 248.
Eents — "Wilful Default,
A vendor who has to account to the purchaser for rents and profits from the
time fixed for completion is not, unless a special case be made, liable to account
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SPECIFIC PERFORMANCE. 447
for sums which he might have received but for his wilful default, nor entitled to
an inquiry as to repairs or lasting improvements : Sherwin v. Skakspear, 5 De G.
M. & G. 517.
Occupation Eent — Eests,
Where a common leasehold estate is sold, and possession is not delivered to the
purchaser, if any delay occurs the vendor must pay a rent in respect of his occu-
pation, the purchaser being charged with interest on the purchase-money :
Dy&r V. Eargreaves, 10 Ves. 505 ; Fenton v. Browne, 14 Ves. 144.
Where an occupation rent is charged against the vendor, the order does not
direct an allowance to be made for income tax : Sherwin v. Shahspear, 5- De G.
M. & G. 517.
Where fixtures agreed to be taken at a valuation are of great value, the pur-
chaser, if let into possession after the time at which the valuation ought to he,
but before it is made, ought to pay an occupation rent for the intermediate period :
Dart., 4th ed., 581.
Where an occupation rent is set upon an estate, interest is sometimes deducted
at £5 per cent, upon the deposit : Smith v. Jackson, 1 Mad. 618.
Where a purchase was set aside on the ground of fraud, and the purchaser was
directed to pay an occupation rent, and to be repaid his purchase-money and
interest, and the rents exceeded the interest, annual rests were directed, so that
the excess of rent beyond the interest might go in reduction of the capital :
Sugden, 14th ed. 642 ; Donovan v. Fricker, Jac. 165.
After the annual rent had liquidated the principal, the account was directed of
rent without interest : Ibid.
But rests are not made in the account unless a special case he shewn for them :
Nessom v. Clarkson, 4 Hare, 97.
Outgoings.
On a sale of leaseholds, a condition being that all outgoings up to a day named
should be cleared by the vendors, it was held that an apportioned part of the
current rent was an outgoing, and must be allowed to the purchaser : Lawes v.
Gibson, L. R. 1 Eq. 135.
In the absence of express stipulation, the expenses and outgoings of property,
such as the repairs and renewals of premises and machinery in the case of mills,
must be borne by the vendors down to the period when a good title was shewn :
Story 10th ed. 769; Oarrodus v. Sharp, 20 Beav. 56.
Compensation — Abatement.
In suits by purchasers for specific performance the general rule is that the pur-
chaser if he chooses is entitled to have the contract specifically performed so far as
the vendor can perform it ; and to have an abatement out of the purchase-money,
or compensation for any deficiency in title, quantity, quality, description, or other
matter relating to the estate : Story, 10th ed. vol. i. p. 786 ; Paton v. Sogers,
1 V. & B. 351 ; Hill v. Buckley, 17 Ves. 394 ; Mestaer v. Qilhspie, 11 Ves. 640 j
Graham v. Oliver, 3 Beav. 124, 128 ; Wood v. Griffith, 1 Sw. 543 ; Harris v.
PeppereU, L. R. 5 Eq. 1; Order, p. 431; Barnes v. Wood, L. R. 8 Eq. 424;
Order, p. 436 ; Castle v. Wilkinson, L. E. 5 Ch. 534 ; Hooper v. Smart, L. E.
18 Eq. 683 ; PhiUips v. Silvester, L. R. 8 Gh. 173 ; Powell v. Elliott, L. R,
10 Ch. 424.
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448 SPECIFIC PERFOEMANCE.
Where a purchaser liad filed Ms bill for specific performance, and an order had
.directed a general reference as to title, without adding, as the Court had directed,
" without prejudice to the question of compensation," the vendor obtained com-
pensation for a want of title as to part : Wilson v. Williams, 3 Jur, (N.S.) 810,
cited in Sug. 14th ed. 314.
And if the vendor by wilful acts or mere negligence cause or permit the pro-
perty to deteriorate the purchaser is entitled to compecsation : Dart, 4th ed. 596,
and cases there cited.
And although in the agreement there may be provision for compensation in case
of error or mistake, such provision is no bar to specific performance in the event
of such error or mistake occurring : Hoy v. Smythies, 22 Beav. 510.
In cases of deficiency in quantity the xjurohaser's right is strictly to com-
pensation, and not necessarily to an abatement of purchase-money proportionate
to the surface deficiency: Dart, 4th ed. 603; Hill v. Buckley, 17 Ves. 394;
Order, p. 435.
If the vendor has received the purchase-money he must pay interest upon it in
refunding the amount of the abatement : Ferguson v. Tadman, 1 Sim. 530.
Consideration Monet.
Inadequacy of consideration is a good defence by a vendor in a suit for specific
performance if fraud, misrepresentation, or improper concealment on the part of
the purchaser can be established : White v. Damon, 7 Ves. 30 ; Ooles v. Treco-
thicJe, 9 Ves. 246 ; Burrowes v. Lock, 10 Ves. 470 ; Western v. Sussed, 3 Ves. &
B. 187; CaSman v. Homer, 18 Ves. 10; 1 Mad. 81; OoodwinY. Fielding,^
De G. M. & Gr. 90 ; see also Davies v. Cooper, 5 My. & Cr. 279.
But no purchase made bond, fide, and without fraud or imfair dealing, of any
reversionary interest in real or personal estate, is to be opened or set aside merely
upon the ground of undervalue : 31 Vict. c. 4.
Excess in value may in some few cases be a good defence by the purchaser to
the vendor's bill : Sugden, 14th ed. 273 ; Poole v. Shergold, 2 Bro. C. C. 199 ;
Haywood v. Cope, 25 Beav. 140 ; Ridgway v. Sneyd, Kay, 627.
Payment of Purchase-money into Coitet.
A purchaser in possession may upon motion, and even before answer, be ordered
to pay the purchase-money into Court : Dixon v. Astley, 1 Mer. 133 ; Bun-oughs
V. Oakley, Ibid. 52, 376.
But payment into Court will not be ordered, first where possession is taken
under the contract, or is consistent with it, and the purchaser has not dealt im-
properly with the estate.' But if possession by the purchaser without payment of
the money is contrary to the intention of the parties, or is held according to it,
but improper acts of ownership have been exercised, the Court will compel the
purchaser to pay his money into Court : Sugden, 14th ed. 231.
But where a purchaser has been long in possession, e.g. three years, he will be
required either to give up possession or pay in his purchase-money : Dart, 4th ed.
1001 ; Tindal v. Cobliam, 2 My. & K. 385 ; Clarke v. WUson, 15 Ves. 317 ;
Morgan v. Shaw, 2 Mer. 138 ; Bradshaw v. Bradshaw, 2 Mer. 492.
Where a vendor in possession files a bill for specific performance, and to
restrain the purchasers from proceeding at law for his deposit, he can generally
obtain the injunction only upon the terms of paying his deposit into Court :
Dart, 1003; Wynne v. Griffith, 1 S. & S. 147, 149.
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SPECIFIC PERFORMANCE. 449
CoNTEACT — Time.
In equity the time appointed for the completion of a contract is not as at law
as of the essence of the contract ; but it may be so from the nature and circum-
stances of the contract, or be made so by direct stipulation or by implication :
Wynn v. Morgan, 7 Ves. 202 ; Gibsm v. Patterson, 1 Atk. 12 ; Seton v. Slade,
7 Ves. 265 ; Ring v. W&m, 6 Beav. 124 ; Parkin v. Thorold, 16 Beav. 59.
And either party may by notice insist upon the contract being completed
within a reasona,ble time : Parkin v. Thwold, 16 Beav. 59.
And if the contract was merely the option of purchase within a certain period,
time will be considered the essence of the contract : Lord Bandagh v. Melton, 10
Jur. (N.S.) 1141 ; Westrni v. Cdllims, 11 Jur. (N.S.) 190.
So, too, where the contract was that a railway company should make the line
and certain crossings over it within a certain time : Darnhy v. London, Chatimm,
and Dover By. Co., 9 Jur. (N.S.) 452.
And if time was not originally of the essence of the contract, it may become so
by notice after improper delay : King v. Wilson, 6 Beav. 124.
In ordinary cases if the vendor can remedy a defect in his title within reason-
able time, equity will give him the benefit of a decree for specific performance :
Sugden, 14th ed. 260, 261.
Dkceee constitutes Judgment Debt.
A decree for specific performance, with a reference to compute principal and
interest, tax costs, and directions for payment by deft when ascertained, constitute
a judgment debt, although the inquiries may not have been made.
Damages.
In all cases in which the Court of Chancery has jurisdiction to entertain an
application for the specific performance of any covenant, contract, or agreement,
it shall be lawful for the same Court, if it shall think fit, to award damages tq
the party injured, either in addition to or in .substitution for such specific per-
formance, and such damages may be assessed in such manner as the Court shall
direct : 21 & 22 Vict. o. 27, s. 2.
The damages may be assessed by the Coiu-t itself, either with or without a jury,
or at Nisi Prius, or at the assizes, or before the sheriff, or by an inquiry in
Chambers: 21 & 22 Vict. c. 27, ss 36.
The Court need not grant relief in any suit concerning a matter in which a
Court of Common Law has concurrent jurisdiction, if the matter has been impro-
perly brought into equity : 25 & 26 Vict. c. 42, s. 4.
Damages will not be given in cases where previously to the Act the Court
would not have ordered an injimction or decreed specific performance. See cases
cited in Dan. 5th ed. 946 ; Morg. 4th ed. 262 ; Eindley v. Emery, L. R. 1 Eq. 62 -.
Dmell V. Pritcha/rd, L. R. 1 Ch. 244 ; Lewers v. Earl of Shafleshury, L. R. 2 Eq .
270.
Under 21 & 22 Vict. c. 42, it is discretionaiy with the Court whether it will
award damages : Dv/rdl v. Pritchard, L. R. 1 Ch. 244.
Where the pit had at the time of filing his bill no ground for equitable relief,
the Court of Chancery has left the question of damages to a Court of Law. S. C.
To entitle a pit to damages he must shew substantial injury : Owrriers' Co.
V. Corbett, 13 W. R. 1056.
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450 SPECIFIC PERFORMANCE.
Damages may be granted in substitution for equitable relief : Senior v. Pawson,
L. R. 3 Eq. 330 ; Isenberg v. Hast India Co., 12 W. R. 450 ; Gurriers' Co. v.
Oorbett, 13 W. R. 1056; Martin v. Beadon, L. R. 3 Eq. 425 ; OaUmY. Wyld,
32 Beav. 266. See also observations of the M. R. in Franhlmsld v. BM;
S3 Beav. 560.
Where the plaintiff should have proceeded at law, the Court of Chancery has
under the former practice declined to assess the damages, and the bill has been
dismissed without prejudice to the pit's right to proceed at law : Wycomhe Ry. Co.
Y. Bonington Sospital, L. R. 1 Ch. 268 ; BdbsonY. Whittingham, L. R. 1 Ch. 442 5
Clarke v. GlarJc, L. R. 1 Oh. 16 ; Scott v. Bayment, L. R. 7 Eq. 112 ; Cooke v.
Forhes, L. R. 5 Eq. 166.
Damages at the suit of a purchaser for specific performance will not be awarded
in respect of a mere lapse of time : Ohinneck v. Marchioness of Ely, 11 Jur. (JST.S.)
32 ; 2 H. & M. 220.
Interest.
A purchaser who has been in possession is only bound to pay interest on the
purchase-money, and to take the rents and profits from the time when a good title
was fijst shewn : Jones v. Mudd, 4 Russ. 118.
Whilst a material objection to the title remains to be cleared up, a purchaser is
justified in declining to take possession, and the Court will not compel him to pay
interest : Sugden, i4th ed. 630 ; Forteblow v. Shirley, 2 Sw. 223.
Interest on timber to be taken at a valuation will only commence from the
valuation : Sugden, 14th ed. 631.
Upon the sale of an estate in possession under an order of the Court the pur-
chaser is entitled to the possession or rents from the quarter-day preceding his
purchase, paying his money before the following one. But he will not be»allowed
to deduct property tax.
A purchaser does not pay interest upon his deposit, although the vendor may
have been prevented by the default of the purchaser from receiving it from the
auctioneer : Bridges v. Robinson, 3 Mer. 694.
As a general rule, when specific performance is decreed the vendor is entitled to
4 per cent, interest from the time that the money was contracted to be paid, and
the purchaser to the rents and profits from the time possession was to have been-
delivered : Esdmle v. Stephenson, 1 S. & S. 123 ; Baton v. Rogers, 6 Mad. 256.
Where the conditions of sale provide that interest shall be paid from a certain
day, if the purchase be not then completed, the vendor's delay will not relieve the
purchaser from payment of interest : Esdaile v. Stephenson, 1 S & S. 123.
But where there is no such stipulation, and the interest exceeds the rents and
profits, the Court will, in case of unnecessary delay by the vendor, give him no
interest, but leave him in possession of the interim rents and profits : S. C. ; Jones
V. Mudd, 4 "Russ. 118.
Where conditions of sale provide that interest shall be paid by the purchaser
from a fixed time if the completion be delayed "by any cause whatever," delay
occasioned by the state of the title, and not wilful on the part of the vendor, falls
within the provision : Sherwin v. Shalcspeare, 5 De G. M. & G. 517 ; Order, p. 430.
Lien on Vendoh's Estate for Deposit and Costs
Where in a suit for specific performance by vendor a good title is not deduced,
and a deposit has been paid, the Court has dismissed the bill mth costs ordered
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SPECIFIC PERFORMANCE. 451
the return of the deposit with interest, anrl gi-anted a lien for the amount of deposit
and interest : Lord Anson v. Hodges, 5 Sim. 227 ; Wythes v. Lee, 3 Drew. 396.
And the lien has heen extended to the costs of suit : Middleton v. Magnay,
2 H. & M. 233 ; Turner v. Marriott, L. E. 3 Bq. 744 ; Order, p. 435.
Default in Payment by Pcechaser.
Where after decree forspecific performance the deft, the purchaser, made default,
the contract was, upon the application of the pit, ordered to he rescinded, and
further proceedings stayed, with liberty for the pit to make application as to
damages : Foligno v. Martin, 16 Beav. 586 ; Sweet v. Meredith, 4 Giff. 207 ; Order,
p. 433.
But if the pit is unwilling to rescind he is entitled to a declaration of his lien
for the unpaid purchase-money and costs, and to an order for sale : Walker v.
Ware, Hadham, and Buntingford By. Go., L. B. 1 Bq. 195 ; Bishop of Winchester,
V. Mid Hants By. Co., L. E. 5 Bq. 17 ; Orders, p. 433, 434.
And the Court will enforce the lien by sale, although the railway has been
made and opened for public traffic : Walker v. Ware, &c.. By. Co., supra ; Wing v.
Tottenham My. Go.,~h.KiGh.li.(i.
But after decree made for specific performance in which no charge had been
declared upon the land, an application by petition to enforce a lien on the land was
dismissed : Att.-Qen. v. Sittinghourne and Sheerness By. Co., L. R. 1 Bq. 636.
After a decree for specific performance against a railway company and an order
for sale of the land and payment of the deficiency, an injunction restraining the
company from running engines over the land was dissolved, as making the land
useless to both parties, and a receiver was appointed vrith a direction to the
company. to give him immediate possession: Munns v. Isle of Wight By. Co.,
L. B. 5 Ch. 414. See also Cosens v. Bognor By. Co., L. B. 1 Ch. 594'; Pell v.
Northampton and Banbury By. Co., L. E, 2 Ch. 200.
Where land purchased by a railway company is sold to enforce the vendor's
lien for unpaid purchase-money, it is sold free from all claim of the public to use
it as a highway : S. C.
A writ of ne exeat lies against the purchaser who has not paid his purchase-
money upon his threatening to go abroad, if the vendor's title has been accepted :
Goodwin v. Clarke, 2 Dick. 497 ; Jackson v. Fetrie, 10 Ves. 164 ; Sugden, 14th ed.
241.
So, too, if there has been a decree for specific performance after the title has
been investigated : Boehm v. Wood, T. & B. 332 ; Morris v. NcNeil, 2 Buss.
604.
Eescinding Contract.
Where either of the parties to the contract has procured the other to enter into
it by means of a misrepresentation or concealment, which a Court of Equity
considers fraudulent, it will not merely decline to enforce, but will even rescind
the contract, unless the party defrauded elect to have the misrepresentation made
good : Dart, 4th ed. 95 ; Ex parte James, 8 Ves. 337, 345 ; Blanche v. Colburn,
8 Bing. 14 ; Palrner v. Temple, 9 A. & B. 508 ; Kemp v. Bose, 1 Giff. 258 ;
Pawley v. Turnbull, 3 Giff. 70 ; Blair v. Bromley, 2 Ph. 354 ; Kimberley v.
Bick L. B. 13 Bq. 1 ; Jervis v. Beveridge, L. R. 8 Ch. 351 ; Dunne v. English,
L. R. 18 Eq. 524 ; Panama and South Pacific Co. v. India Bubber and Tele-
graph Works Co., L. R. 10 Ch. 525.
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452 SPECIFIC PEEFORMANCE.
As regards a purchaser's right to rescind upon the ground of delay : See Dart,
4th ed. 87, et seq.
A condition that the vendor may annul the contract and return the deposit if
objections are made by the purchaser and not removed within a fixed time,
enables the vendor to avoid the sale if the purchaser, under a mistake in law,
raise an objection which cannot be maintained : Sugden, 14th ed. 20 ; Page v.
Adam, 4 Beav. 269 ; Lane v. Debenham, 17 Jur. 1005. See also Turpin v.
Chambers, 30 L. J. (N.S.) 470 ; 19 Beav. 104 ; Eoy v. Smithies, 22 Beav.
510 ; Mawson v. Fletcher, L. R. 10 Bq. 212 ; L. R. 6 Ch. 91 ; Denny v. Han-
coch, L. R. 6 Ch. 1.
But the vendor cannot make use of the condition for a fraudulent purpose,
e.g., on account of the inadequacy of price : Sugden, 14th ed. 20.
If the vendor file a bill for specific performance he cannot rescind his con-
tract without his bill he first dismissed with costs : Warde v. Dixon, 28 L. J.
(N.S.) 315.
County Court Jueisdiction,
Proceedings for the specific performance, or the delivery up or cancelling of
agreements, shall be taken in the County Court within the district of which the
defts or any one of them reside or resides, or carry on or carries on business : 28 &
29 Vict. c. 99, s. 10.
Under this Act it was held that the County Courts can entertain a suit for the
specific performance of an agreement to grant a lease : Wilcox v. MarshaU, L. R.
3 Bq. 270.
And the jurisdiction may be exercised in all suits for specific performance of or
for the reforming, delivering up, or cancelling of any agreement for the sale,
purchase, or lease of any property, where in the case of a sale or purchase the
purchase-money, or in the case of a lease the value of the property, shall not
exceed £500 : 30 & 31 Vict. c. 142, s. 9.
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( 453 )
CHAPTER XXVI.
EECTIFIOATION OF DEEDS.
Settlement rectified — Fresh Deed to he executed.
Directions for will to he established. Declare that the settlement
made pursuant to the testator's will as regards the trusts for, &c., and
the powers therein contained of changing and appointing new trustees,
and exchanging the lands thereby released, is proper and in conformity
with the said will, except that the last-mentioned power ought to
have been a power of sale and exchange, without any restriction as to
any part of the testator's estates.
Declare that until a proper settlement can be executed the said
estates are to be held and enjoyed in like manner as if such power of
sale and exchange were contained in the said settlement. Directions
to approve a proper settlement, having regard to the said declaration.
Jones V. Jones, 5 Hare, 440 ; Seton, 498.
Covenant in Settlement rectified.
Declare that the indenture of settlement dated, &c., ought to be
rectified as to the covenant for settling future property therein con-
tained by inserting the words following, namely, " one equal moiety
or half part or share of and in " between the word " that " and the
words " all the estate, property, and effects " in the forty-third line of
the third skin of the said settlement, and by inserting, &c., so as to
make the said covenant agree with the recital in the said settlement
contained of the agreement, &c. And any of the parties are to be at
liberty to indorse the aforesaid declaration upon the said indenture of
settlement. Costs of all parties to be taxed as between solicitor and
client, to be paid and retained by the trustees out of the trust fund.
— Liberty to apply. Fowler v. Fosbery, Eeg. Lib. 1856, A. 614; Seton,
497.
Settlement rectified without fresh Deed.
[Directions for the appointment of new trustee.] Declare that the
indenture of settlement dated, &c., is not in all respects in conformity
with the provisions of the articles dated, &c., and that the said in-
denture ought to stand altered and rectified in manner hereinafter
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454 EBOTIFIOATION OF DEEDS.
directed. Declare that the trusts in the said indenture expressed for
the investment of [the trust funds] in any of the Parliamentary
stocks or public funds of Great Britain, or at interest upon Govern-
ment or real securities in England, but not in Ireland, and for the
alteration, variation, and transposition of the same, ought to be and do
stand altered and rectified so as to authorize the investment of the
said [trust funds] in any of the Parliamentary stocks or public funds
of Great Britain, or upon Government securities in England only, and
so as to authorizfr the alteration, variation, and transposition of the
same for or into other stocks, funds, or securities, of the like nature
only. , Declaration as to the trusts of the fund for the children of the
marriage, and declare that thesaid indenture of settlement ought to
"be and do stand altered and rectified accordingly. Declare that the
words . . . [stating them'] ought to be struck out and erased from the
feaid indenture. Declare that the power [stating power to appoint
new trustees'] ought to be and do stand varied and rectified in such
manner as to authorize, &c. Declare that the trusts of the said inden-
ture of settlement, varied and rectified as aforesaid, ought to be car-
ried into execution in like manner as if the same had been so varied
and rectified before the execution of the said indenture by any of the
parties thereto. Tebbitt v. Tebhitt, 1 De G. & Sm. 506, 510.
Settlement rectified as to Period of raising Charges.
The Court being satisfied that the &ve several sums of £87 each
due from the Pit to E. D., M. L. C, E. C, E. C, and L. H. C, men-
tioned in the settlement dated the I8th August, 1866, in the Pit's
bill mentioned, were by mistake in the said settlement made raiseable
on the death of the Pit instead of on the death of the Pit's mother,
E. C. Declare that such sums became raiseable and payable to the
said persons entitled thereto respectively upon the death of the said
E. C, which took place upon the 28th February, 1869, and that the
Deft C. J., as trustee of the said settlement, is authorized and em-
powered forthwith to raise the said sums and interest thereon at
the rate of £5 per cent, per annum from that date until payment by
a sale or mortgage" of the hereditaments and premises comprised in
or subject to the trusts of the said settlement, and to pay over the
same to the several persons entitled thereto respectively. ■ Let the
costs of all parties of this cause be taxed by the taxing master, aind
he raised and paid by the said Deft C. J. as such trustee. Let a
copy of this order be indorsed upon the said indenture of settlement.
—Liberty to apply. JViltshire v. Jones (V.-C. J.), April 24, 1869.
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RECTIFICATION OP DEEDS. 455
Mistake in Settlement — Petition under Trustee Belief Act.
The Court being of opinion that the words " in case the said Hen-
rietta his wife shall he such survivor " were inserted by mistake in
the settlement dated, &o., in the petition mentioned. Let the sum of
£ — , part of the sum of £ — in Court to the credit of " In the
Matter of the Trusts of the Settlement," &c., be transferred and
paid to the legal personal representatives of Villiers De La Touohe,
and Let the sum of £ — , the residue of the said cash, be transferred
and paid, subject to duty, to the petitioner C. T. Be De La Tmche's
Settlement, L. E. 10 Eq. 599.
Voluntary Settlement rectified — Deed cancelled.
'■ Declake that the deed-poll dated, &c., in the Pit's bill mentioned,
is void, and that the same ought to be delivered up to be cancelled.
Let Deft H. deliver up the said deed-poll to the Pit L.- Let the
Deft H. on or before the — day of — pay to the Pit L. the sum of
£900, with interest thereon at £4 per cent, from the -— day of — to
the day of payment, less the sum of £3 paid on account of such
interest. Let the certificate for the £300 Consolidated Stock of the
British and Magnetic Telegraph Company dated, &c., and "the certifi-
cate for £420 £4 per Cent. Stock of the Great Eastern Railway dated,
&c., deposited by the Deft H. with the Clerk of Eecords and Writs
pursuant to an order dated, &c., be delivered out to the Deft H.
Tax the Deft D. her costs of suit. Pit L. to pay such costs, and add
them to his own. Deft H. to pay to Pit his costs, including what
he shall have paid the Deft D. Lister v. Hodgson (M. E.), March 12,
1867.
Settlement — Form of Sale rectified — Be-conveyance.
Declare that the settlement dated, &c., is not conformable to the
contract between the parties so far as the power of sale and exchange
therein contained is made exercisable at the request, &c., &c. ; and
that such power of sale and exchange ought to have been framed by
the insertion in the seventh line of the fourteenth skin of the same in-
denture, immediately after the words "at the request and by the
direction," of the words following : " of J. H. Viscount P., E. A. J. H.,
and C. A. H. respectively, from time to time during their respective
natural lives as and when they respectively shall under and by virtue
of the limitations hereinbefore contained be in the actual possession
or entitled to the rents, issues, and profits of the said manors and
hereditaments hereinbefore limited in use to the said J. E., Earl of
Malmesbury, for his life, such request and direction to be signified by
writing under their respective hands and seals ; and if and when there
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456 RECTIFICATION OP DEEDS.
shall not be any such tenant for life, at the request and by the direc-
tion." And that such indenture ought to be construed and take effect
as if the same had been so framed. Let a copy [notice] of this decree
be indorsed on the said indenture. Let all proper parties execute and
do such conveyances and acts as may be necessary and as the judge
shall approve for the purpose of giving legal effect to the above decla^
ration, and for creating in the hereditaments comprised in the said
indenture, or devised by the ■will of the said late Earl to the uses of
the said indenture, or received in exchange by the trustees of the said
power of sale and exchange, in the intended execution of the said power
of sale and exchange, a power of sale and exchange conformable to the
aforesaid declaration, and for giving effect to such sales and exchanges
as have already been made and completed of any hereditaments com-
prised in or subject to the uses of the said indenture in intended
execution of the power of sale and exchange contained in such inden-
ture. Declare the infant Deft a trustee, and appoint E. E. N. in his
place to execute or concur in executing such conveyances as the judge
shall approve and direct. Malmeshury v. Malmesbury, 19 Beav. 407,
419.
Voluntary Settlement — Deed set aside — Imjprovidence.
Declare that the indenture dated, &c., is void, and ought to be set
aside, and Let the Defts J. E. and A. E. deliver up the said indenture
of settlement to the Pit to be cancelled. Tax the costs of the Defts
of the suit as between solicitor and client, including costs, charges,
and expenses properly incurred as trustees, and in relation to the
transfer of mortgage hereinafter mentioned. Let the said Defts join
in and execute a proper transfer of the mortgage dated, &c., in the
bill mentioned to — , or to whom he shall appoint (such transfer to be
settled by the judge, &c.) and deliver up, &c. Upon the due execu-
tion of the transfer the Pit to pay Defts their said costs. Everitt v,
Everitt, L. E. 10 Eq. 405.
Eectification of Deeds, &c.
Agreements entered into in good faith but under a mistake in law, are gene-
rally obligatory upon the parties : Pullen v. Ready, 2 Atk. 591.
But where a person acting in ignorance of plain law has been induced to give
up his property the Court has given relief : Naylor v. Winch, 1 Sim. & Stu. 555 ;
Landsdowne v. Landsdowne, Jao. & W. 205 ; Stockley v Stockley, 1 V. & B.
31 ; Oann v. Cann, 1 P. Wms. 727.
Where parties whose rights are questionable have equal knowledge of facts
and of the means of ascertaining their rights, agreements are binding. Sectis,
where the parties have not been on equal terms : Pickering v. Pickering, 2 Beav.
31, 56. See also Stewart v. Stewart, 6 CI. & F. 911 ; Stone v. Godfrey 5 De Gr.
M. & G. 76.
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RECTIFICATION OF DEEDS'. 457
The relief granted in case of mistake is not confined to mere executory con-
tracts. In preliminary contracts for conveyances and settlements, &c., the Court
reforms the preliminary contract itself, and decrees a due execution of it as re-
formed, if no conveyance in pursuance of it has been executed. If the conveyance
has been executed, the Court reforms the latter also : Story, 10th ed., vol. i. 155.
The Court has decreed the surrender of a bond to be cancelled where it had not
been executed by all who were meant to be bound by it : Mvans v. Bremridge,
2 K. & J. 174.
The Court in rectifying a contract can annex a condition not in the contempla-
tion of the parties at the time of the contract : Garrard v. Franlcel, 8 Jur. (N.S.)
985 ; 30 Beav. 445.
In order to enable the Court to rectify a settlement, it must be proved that
it was drawn in its existing form by a mistake common to all the parties to it :
Books V. Lord Kensington, 2 K. & J. 753 ; Sells v. Sells, 1 Dr. & Sm. 42.
If the evidence be such as to make it doubtful whether this was so or not, the
utmost the Court will do is to direct an inquiry : Books v. Lord Kensington,
supra.
But the rule that the Court will not interfere to rectify an instrument unless
it is proved that the mistake was common to both parties, does not apply to the
case of a contract between vendor and purchaser: Harris v. PeppereU, L. R.
5 Bq. 1.
As to the power of the Court to rectify a settlement and the modes of rectify-
ing it : see Solson v. Ferrahy, 2 Coll. 412 ; Earhidge v. Wogan, 5 Hare, 258 ;
WotUrbeck v. Barrow, 23 Beav. 423 ; Torre v. Torre, 1 Sm. & G. 518 ; Smith v.
Iliffe, L. R. 20 Eq. 666 ; Cogan v. Buffield, L. B. 20 Eq. 789.
In applications to rectify a settlement, or to reform a contract on the ground of
mistake, the question to be considered is not what the parties would have done,
but what was their intention at the time of the contract : Wilkinson v. Nelson,
7 Jur. (N.S.) 480 ; 9 W. R. 393.
And in suits to rectify written contracts, where no written instructions for
them have been given, the Court has accepted parol evidence as to the intention of
the parties : Lachersteen v. Laxkersteen, 6 Jur. (N.S.) 1111 ; 30 L. J. (Oh.) 5.
The Court has rectified the execution of a power of appointment by the insertion
of a hotchpot clause : Wilkinson v. Nelson, svpra.
And has rectified deeds in the execution of powers in favour of children:
Tollett V. Tollett, 2 P. Wma. 490 ; Chapman v. Gibson, 3 Bro. C. C. 299 ; Morse
V. Martin, 34 Beav. 500 ; Kenruwd v. Eennard, L. R. 8 Ch. 227.
In favour of purchasers or children the Court relieves against the defective
execution of a power, provided it sufBciently appears that there was an intention
on the part of the donee to give the property the subject of the power : Kennard
V. Kennard, L. R. 8 Ch. 227.
But there must be a distinct intention to[^execute the power : Garth v. Town-
send, L. R. 7 Eq. 220.
And it is competent to a settlor to make the nature and character of the in-
strument by which the power he creates shall be executed of the essence of the
power, without observing which no execution of the power is to be valid: Cooper
v. Martin, L. R. 3 Ch. 47, 57.
Where there is a manifest discrepancy between the recital in a settlement and
the operative part of the deed, the recital being clear as to what was intended,
and the conveyance going beyond the recital, the conveyance will have to be
restricted : Jenner v. Jenner, L. E. 1 Eq. 364.
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458 -RBCTIFIOATION OP DEEDS.
On a bill filed praying a declaration that a legal estate did not pass by a settle-
ment, or if it did, that the settlement might be rectified, the Court, although of
•opinion that the legal estate did not pass, had no jurisdiction to declare the legal
right : Roohe v. Lord Kensington, supra ; Jenner v. Jenner, supra.
In the latter case the decree was, " The Court being of opinion that the estate
did not pass, dismiss the bill without costs :" Jenner v. Jenner, supra.
, Parol evidence is admissible to make out a case for rectificataon of a settlement :
Barrow v. Barrow, 18 Beav. 529.
The erroneous belief of both husband and wife on their maniage that a par-
ticular property was already settled, is no ground for rectifying a settlement so as
to include it : S. 0.
The Court will not rectify a voluntary deed, imless all parties consent : Brown
V. Kennedy, 9 Jur. (^N.S.) 1163 ; 33 Beav. 133.
The Court will not generally interfere to enforce a contract between parties for
-the due execution of a voluntary deed : lAster v. Hodgson, h, B. 4 Eq^ 30.
, A mistake made in a marriage settlement, and which upon the face of the deed
was repugnant to the sense of it, may be rectified by petition. The order may
cure the mistake without the settlement itself being rectified: De la Touche's
Settlement, L. E. 10 Bq. 599 ; Order, p. 455 ; Be Soare's Trusts, 4 Gifl'. 254 ;
Lewis V. SUlman, 3 H. L. 0. 607.
A voluntary settlement made by an unmarried lady shortly after attaining
twenty-one, although made bona fide, was set aside as being improvident in. its
provisions for her benefit : Everitt v. Everitt, L. E. 10 Eq. 405 ; Order, p. 456.
In a marriage settlement containing the recital of an agreement that the after-
acquired property of the wife should be settled, the correspoiwiing operative part
was a covenant by the husband alone, and the Court declined to introduce into
the settlement a covenant to settle the after-acquired property : Taung y. Smith,
;L. E. 1 Eq. 180.
A party to a deed is not estopped in equity from offering evidence to contradict
a recital therein contrary to the fact, which has been introduced into the deed by
mistake of fact and not through fraud or deception : Brooke v. Eaynes, L. R.
6 Eq. 25.
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CHAPTER XXVII.
SALES BY THE COUET,
Inquiry as to Incumbrances — Sale.
Let the following inquiry and account be taken and made :
1. An inquiry whether any and what incumbrances affect the real
[or, leasehold] estate of — the testator [or, intestate] situate, &o. [or,
the lands, &c., comprised in the indenture dated, &c.], or any and
what parts thereof, and the priorities of such incumbrances. 2. An
account of what is 'due to such of the incumbrancers as shall consent
to the sale hereinafter directed in respect of their incumbrances. Let
the said real [or, leasehold] estate be sold with the approbation of the
judge, free from the incumbrances (if any) of such of the incumbrancers
as shall consent to the sale, and subject to the incumbrances of such of
them as shall not consent.
Let the money to arise by such sale be paid into Court to the credit
of, &o.' And if such money, or any part thereof, shall arise from pro-
perty sold with the consent of incumbrancers, the same is to be applied
in the first place in payment of what shall appear due to such incum-
brancers according to their priorities. [If order made on the hearing :
Adjourn further consideration. — Liberty to apply.]
Sale without Inquiry as to Incumbrances.
Let the real [or, leasehold} estate of — the testator [or, intestate],
situate, &c. [or, the lands, &e., comprised in the indenture dated, &c.
or, mentioned in the chief clerk's certificate, &c.], be sold with the
approbation of the judge. Let the money to arise by such sale be
paid into Court to the credit of, &o., " Proceeds of Sale," &c.— Adjourn
further consideration. — Liberty to apply.
Peopeety, when sold.
If after a suit has been instituted in relation to any real estate it appears to
the Court that it will be necessary or expedient that such real estate, or any part
thereof, should be sold for the purposes of the suit, the Court may direct the
same to be sold at any time after the institution thereof; and such sale will he
as valid to all intents and purposes as if directed to be made by a decree or
decretal order on the hearing of such cause : 15 & 16 Vict. c. 86, s. 55.
9ufc the Court has no jurisdiction to sell real estate in cases where the jurisdic-
tion did not previously exist : Mandeno v. Mandeno, Kay, App. 2; Svjan v.
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460 SALES BY THE COURT.
Webb, 1 W. R. 90 ; Martin v. Eadlow, Ibid. 101 ; Prince v. Cooper, 16 Beav.
546 : Dan. 5th ed. 1149.
As to sales before the hearing 'when made for the benefit of the estate, see
Tulloch V. Tulloch, L. B. 3 Eq. 574.
" In any suit for the foreclosure of the equity of redemption in any mortgaged
property, the Court may, upon the request of the mortgagee, or of any subsequent
incumbrancer, or of the mortgagor, or any person claiming under them respec-
tively, direct a sale of such property, instead of a foreclosure of such equity of
redemption, on such terms as the Court may think fit to direct ; and, if the Court
so thinks fit, without previously determining the priorities of incumbrancers, or
giving the usual or any time to redeem ; but if such request is made by any such
subsequent incumbrancer, or by the mortgagor, or by any person claiming under
them respectively, the Court is not to direct any such sale without the consent of
the mortgagee, or the person claiming under him, unless the party making such
request deposit in Court a reasonable sum of money, to be fixed by the Court, for
the purpose of securing the performance of such terms as the Court may think fit
to impose on the party making such request" : 15 & 16 Vict. c. 86, s. 48.,
As to sales under this Act, see Mortgages, ante, p. 364.
Peopkety, how sold.
Where in any case a decree or order is made, whether in Court or in Chambers,
directing any property to be sold, unless otherwise ordered the same must be
sold with the approbation of the judge to whose Court the cause or matter is
attached, to the best purchaser that can be got for the same, to be allowed by the
judge ; and all proper parties are to join in the sale and conveyance as he may
direct : Cons. Ord. 35, rule 13.
Unless a sale is specially ordered to be " out of Court " the order should direct
that the property " be sold with the approbation of the judge " : Nash v. Worces-
ter Improvement Commissioners, 1 Jur. (N.S.) 973.
A sale directed by the Court is usually by public auction. But the sale may
be by private contract, in which case proposals may be made as well before as
after the property has been put up for sale by public auction (see Gen. Ord. July
16, 1851, rules 3 and 4 ; Cons. Ord. 35, rule 61) ; or the property may be offered
for sale by public tender to the highest bidder : Barlow v. Osborne, 4 Jur. (N.S.)
367 ; 6 H. L. C. 556 ; S. C. Osborne v. Foreman, 8 De G. M. & G. 122.
Paeticulaes of Sale.
The particulars or conditions of sale by auction of any land shall state whether
such land will be sold without reserve, or subject to a reserved price, or whether
a right to bid is reserved ; if it is stated that such land will be sold without re-
serve, or to that effect, then it shall not be lawful for the seller to employ any
person to bid at such sale, or for the auctioneer to take knowingly any biddino'
from any such person : 30 & 31 Vict. c. 48, s. 5.
Conduct of Sale,
The conduct of the sale is usually given to the pit, or the person having the
conduct of the cause: Knott v. Cottee, 27 Beav. 33; Cobden v. Maynard 1
New Rep. 354 ; Dale v. Hamilton, 10 Hare, App. 7.
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SALES BY THE COURT. 461
But the conduct may be given to any other party : Dixon v. Pyner, 7 Hare,
331 ; 14 Jur. 217 ; Bewitt v. Nanson, 7 W. R. 5 ; Knott v. Cotter, 27 Beav. 33.
Where a sale is directed instead of foreclosure, the conduct may be given to the
first mortgagee : Hewitt v. Nanson, 7 W. R. 5.
Conveyancing Counsel.
Before any estate or interest is put up for sale under a decree or order, an
abstract of the title thereto is, with the approbation of the Court, to be laid
before some conveyancing counsel, to be approved by the Court, for the opinion
of such counsel thereon, to the intent that the Court may be the better enabled
to give such directions as may be necessary respecting the conditions of sale of
such estate or interest, and other matters connected with the sale thereof; and a
time for the delivery of tl;ie abstract of title thereto, to the purchaser or his soli-
citor, is to be specified in the conditions of sale; 15 & 16 Vict. c. 86, s. 56.
Leave to bid.
If in the particulars or conditions of sale by auction of any land it is stated
that such land will be sold without reserve, or to that effect, it shall not be law-
ful for the seller to employ any person to bid at such sale, or for the auctioneer
to take knowingly any bidding from any such person : 30 & 31 Vict. c. 48, s. 5.
And where any sale by auction of land is declared either in the particulars or
conditions of such sale to be subject to a right for the seller to bid, it shall
be lawful for the seller, or any one person on his behalf, to bid at such sale :
30 & 31 Vict. o. 48, s. 6.
Any party to a suit who desires to bid at a sale directed by the Court should
obtain an order to that effect : Elworthy v. Billing, 10 Sim. 98.
And on any sale under the Partition Act, 1868, the Court may, if it thinks fit,
allow any of the parties to bid upon such terms as to the Court seems reasonable :
31 & 32 Vict. c. 40, s. 6.
But the sale will not necessarily be set aside because a person has bid without
leave : Wilson v. Greenwood, 10 Sim. 101, h. ; Mworthy v. Billing, 10 Sim. 98.
Leave to bid will not be given to the party conducting the sale t Sidney v.
Ranger, 12 Sim. 118; Ex parte McGregor, 4 De G. & Sm. 603.
Except under special circumstances an executor will not be allowed to bid:
Oeldard v. Randall, 9 Jur. (N.S,) 1085.
If any of the cestuis que trust object, a trustee of an estate, though also a mort-
gagee, will not be allowed to bid at a sale by the Court : Tennant v. Trenchard,
L. E.4Ch. 537.
But if the estate is not sold at the sale, the trustee jnay be allowed to 'become
the purchaser under proposals to the Court : S. C.
But by consent, and the Court being of opinion that the parties interested
would be benefited, leave to bid has been given to a trustee: Farmer v. Deem,
32 Beav. 327.
As to the right of a solicitor, not being the solicitor to any of the parties to the
cause, to bid: see Quest v. Smythe, L. R. 5 Oh. 551.
Deposit.
Where a deposit has been received at the sale, the certificate appoints a day
for payment into Cour^, and if paid in by that day no order is necessary. If not
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462 SALES BY THE COURT.
paid in by the appointed titne, an order for that purpose may be obtained ; or by
consent, instead of a separate order a direction for such payment may be added
to the purchaser's order for payment in of the balance of purchase-money : See
Dan. 5th ed. 1162.
A purchaser is entitled to interest on his deposit ; and if the residue of the pur-
chase-money has being lying ready without interest being made by it, he is
entitled to interest on that; and also to interest on money borrowed by him and
kept idle to answer the purchase : Sug. V. & P. 14th ed. 237.
Investigation of Title.
In sales under a decree the purchaser must satisfy himself, not only that the
title to the property is good, but also that the Court had jurisdiction to direct the
sale : Dan. 5th ed. 1164, citing Calvert v. (Godfrey, 6 Beav. 97, 107 ; Sug. V. & P.
209 ; Lechmere v. BraHer, 2 Jao. & W. 287, 290.
It is a suflSoient objection to a title that there is nothing to shew that the
Court had jurisdiction to sell : Waters v. "Waters, 15 W. E. 191.
Where there is a sale by the Court it is a necessary part of the title to set forth
in the abstract so much of the pleadings as shews the jurisdiction to sell : S. C.
But a purchaser cannot take an objection that the Court has miscarried in the
exercise of its jurisdiction : Ibid. ; see also Lutwych v. Winford, 2 Brown's Eep.
248.
The purchaser must also see that all the persons who are necessary to convey
are before the Court ; for if he takes a title which a decree in an imperfect suit
does not protect, he must abide the consequences : Dan. 5th ed. 1165 ; Ooldougli
V. Sterum, 3 Bli. 181 ; Hamilton v. Houghton, 2 EH. 169 ; Oifford v. Hort, 1
Sch. & Lef. 386 ; Bennett v. Hamill, 2 Sch. & Lef. 566.
Where there is jurisdiction to sell, and all persons interested are before the
Court, mere irregularity does not invalidate the order directing a sale : Lloyd v-,
Jdhnes, 9 Ves. 37 ; Bowen v. Evans, 1 J. & Lat. 178, 258 ; Bennett v. Hamill,
2 Sch. & Lef. 566, 579 ; Curtis v. Price, 12 Ves. 89 ; Calvert v. Godfrey, 6 Beav.
97; Beioley v. Carter, L. E. 4 Ch. 230, 23S.
Tnquiey as to Title.
Let an inquiry be made whetlier a good title can be made to tie
hereditaments, &c,, comprised in Lot — , whereof A. B. has been certi-
fied by the chief clerk's certificate dated, &c. [or, order dated, &c.j to
be the purchaser, and being [part of] the property directed to be sold
by the order dated, &o.
Questions in dispute as to title may be decided at chambers, or adjourned into
Court: .fegg v. Winder, 16 Jur. 1105. But in cases of importance the hearing
of the questions in dispute is ordinarily postponed until a formal order for inquiry
as to title has been obtained : Dan. 5th ed. 1166.
The purchaser is entitled to his costs of the inquiry where the title is found to
be good on grounds not appearing on the abstract : Fielder v. Higginson, 3 V. &
B. 142. And where it is proved to be good on grounds appearing on the abstract
he will not bo ordered to pay the vendor's costs of the inquiry (Camden v. Benson,
1 Keen, 671 ; Flower v. HaHop, 8 Beav. 200) unless his objections are frivolous
and vexatious: Dan. 5th ed. 1166.
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SALES BY THE COURT. 463
Uader the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), forty years
are now substituted for sixty as the root of title in contracts for sale of land made
after the 31st of December, 1874, but earlier title than forty years may be re-
quired in cases similar to those in which earlier title than sixty years may now be
required : see Specific Pbrfoemancb, ante, p. 427.
Payment into Court.
Common Order — Title accepted.
Upon the application of — tlie person by the chief clerk's certificate
^ated, &c., certified to be the purchaser of the premises comprised in
Lot — , part of the estate sold tinder the order dated, &c. ; and upon
hearing the solicitors for the applicant and for, &c., and upon reading,
&c., and the applicant by his solicitor declaring himself content with
the title to the premises, it is ordered that the applicant A. B. do on
or before the — day of — pay the sum of £ — , the purchase-money
for the said premises, and the sum of £ — for interest thereon at
the rate of £ — per cent, per annum from the — day of — to the —
day of — into Court to the credit of, &c. And upon such payment
being made. Let the applicant be let into possession of the premises,,
and into the receipt of the rents and profits thereof from the — day
of — . And all, proper parties are to give in and execute a proper,
conveyance of the premises to the applicant, or as he shall direct, such
conveyance to be settled by the judge. And at the request of — by
his solicitors. Let the said sum of £ — be invested in Consolidated £3
per Cent. Annuities, and the dividends on such annuities, and all
accumulations thereof, notwithstanding that the same may not amount
to £100, be invested in like annuities. And the said sum of £ — is not
to be paid out (except for the purchase of such annuities) and such:
annuities are not to be sold, transferred, or otherwise disposed of
without notice to the applicant.
Separate Purchaser g — Schedule.
Upon the application of A., B., and C, &c. the persons named in the
first column of the schedule hereto, and by the chief clerk's certificate
dated, &c., certified to be the purchasers of the hereditaments respect-
ively comprised in the several lots set opposite their respective names
in the second column of the said schedule, being [part of] the estate
sold under the order dated, &o., and upon hearing the solicitors for,
&c., and upon reading, &o., and the applicants by their solicitors re-
spectively declaring themselves content with the title to the heredita-
ments comprised in the lots so purchased by them. Let the applicants
A., B., and C. respectively, on or before, &o., pay into Court to the
credit, &c., the several sums of money set opposite their respective
names in the third column of the said schedule, being the respective
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464 SALES BY THE COURT.
purchase-moneys for the said several lots set opposite their respective
names in the second column of the said schedule, and amounting in
the whole to the sum of £ — . Let upon such payments respectively
being made the applicants be respectively let into possession of the
hereditaments comprised in the lot or lots purchased by them and into
the receipt of the rents and profits thereof from, &c. [directions for corir
veyance and investment]. And the said several sums are not to be paid
ont [except for the purchase of such annuities], and such annuities are
not to be spld, transferred, or otherwise disposed of without notice to
the applicants by whom the said sums shall have been respectively
paid in.
(Schedule.)
Private Contract confirmed.
Let the contract dated, &c., entered into between, &c., for the sale
of the hereditaments and premises comprised therein, being [part of]
the property dit-ected to be sold by the order dated, &c., for the sum of
£ — ■ upon the terms and conditions mentioned in the said contract, be
carried into effect pursuant to the said order.
If ordered : And A. [the purchaser] by his solicitor declaring himself
content with the title to the said premises [directions for payment in,
possession, conveyance, a/nd investment. See last form.]
Payment into Court.
Separate purchasers may join in one application for payment in of their purchase-
moneys.
If the conditions of sale do not provide that the purchaser may deduct property
tax from the interest payable by him, the purchaser is not entitled to deduct it ;
Hol/royd v. Wyatt, 1 De Q-. & Sm. 125 ; Dawson, v. Dawson, 11 Jur. 984.
It is the rule of the Court, on a special case being made out, to receive from a
purchaser his purchase-money without compelling him to accept the title : De
Visme v. De Visme, 1 Mac. & G. 336, n. ; JRutley v. Gill, 3 De G. & Sm. 640 ;
Morris v. Dull, 12 Jur. 4 ; Dempsey v. Dempsey, 1 De G. & Sm. 691.
Where a property subject to a trust is sold conjointly with a property not sub-
ject to a trust the sale must be made so that the proceeds to be attributed to the
trust property can be settled upon a proper basis : Sede v. Oakes, 4 De G. J. & S.
505, 513.
But mere technical objections of a purchaser on this ground are discouraged by
the Court : Cavendish v. Cavendish, L. R. 10 Ch. 319.
Possession.
But a purchaser will not be allowed to take possession " without prejudice to
objections to title," even upon payment of his purchase-money into Court :
Button V. Mansel, 2 Beav. 260 ; Dempsey v. Dempsey, 1 De G. & Sm. 691 ;
Morris v. Bull, 12 Jur. 4.
Where no time is fixed in the conditions of sale at which the purchaser is to be
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SALES BY THE COURT. 465
let into possession, the usual rule in the case of a fee simple estate is to give the
profits from the quarter day preceding the time when the chief clerk's certificate
of his being the purchaser Is confirmed, he paying his purchase-money into Court
before the following quarter day : Dart, 4th ed. 1101 ; Anson v. Towgood^ 1 Jac
& W. 637, per Lord Bldon.
But this rule does not apply to the case of a colliery, which is treated as an
article of trade, the profits accruing daily : Wren v. Eirton, 8 Ves. 502 ; Williams
V. Attenborough, 1 Turn. 70.
If a purchaser enters into possession of the estate without the sanction of the
Court, he will be considered to have accepted the title, and he compelled to pay
the money into Court at once : Dan. 5th ed. 1171 ; Wilding v. Andrews, 1 Coop.
C. P. 380 ; Sug. V. & P. 14th ed. 105.
The purchaser of a reversionary interest is usually ordered to pay interest on
his purchase-money from the time of the purchase : Trefuds v. Lwd Clinton,
2 Sim. 359 ; Bailey v. Gollett, 18 Beav. 179 ; see also WalKs v. Sarel, 5 De Gr.
& Sm. 429.
Where a contract for purchase provides that possession shall be given by a
certain day, the word " possession " must be understood to mean possession with
a good title shewn : TUley v. Thomas, L. E. 3 Ch. 61 ; Boehm v. Wood, 1 Jac. &
W. 420.
Interest.
If a time be fixed for the completion of the contract, and there be delay
attributable to the purchaser, he must from that time -pay interest upon his
purchase-money, although it has been lying idle and appropriated to the pur-^
chase : Dart, 4th ed. 576 ; see also Sug. V. & P. 14th ed. 628.
If, on the other hand (a time being fixed for completion), there be delay at-
tributable to the vendor, the purchaser, if he has been in actual possession or in
receipt of the rents and profits, must pay interest, unless and until his money has
been appropriated to the purchase and lying idle, and notice of such being the
case has been given to the vendor : Dart, 4th ed. 676 ; see also Powell v,
Martyr, 8 Ves. 146 ; Sug. V. & P. 14th ed. 628.
A purchaser (not in possession) will be charged with interest from the time when
a gopd title was shewn : Binhs v. Lord Roheby, 2 Sw. 222 ; FortMow v. Shirley,
cited 2 Sw. 223 ; Jones v. Mudd, 4 Euss. 118 ; De Visme v. De Visme, 1 Mac. & G.
336.
Where the conditions of sale provide for the payment of interest from a certain day,
the purchaser does not relieve himself frOm payment by delay (not wilful) in com
pleting on the part of the vendor : Esdaile v. Stephenson, 1 S. & S. 122 ; JoTies
V. Mudd, 4 Euss. 118, 123 ; Sherwin v. Shahspear, 5 De G. M. & G. 517.
But where a vendor fails to complete by the time appointed, the purchaser
by appropriating money for the pm-pose of the purchase and giving notice to the
vendor that it is lying idle, may free himself from payment of subsequent interest ;
Dyson v. Hornby, 4 De G. & Sm. 481 ; see also De Visme v. De Visme, 1 Mac. & G.
336, 352 ; Williams v. Glenton, L. E. 1 Ch. 200.
The purchaser of a life interest in the public funds is liable to interest from
the time of the contract, and is entitled to a dividend becoming due on the following
day : Anson v, Towgood, 1 Jac. & W. 637, per Lord Eldon.
On the sale of an annuity the purchaser is considered as entitled to the annuity
from the day on which the certificate of the result of sale becomes binding ; he
2 H
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466 SALES BY THE COUET.
paying interest from that day : Dan. 5tli ed. 1171 ; Twigg v. Fifield, 13 Ves. 517 ;
Visey v. Elwood, 3 D. & War. 74.
In sales by the Court the purchaser is not considered as entitled to the benefit
of his contract till the chief clerk's certificate of the result of sale has become
binding: Dan. 5th ed. 1164; Sug. V. & P. 101.
Conveyance.
All proper parties are to join in the conveyance as the judge shall direct : see
Cons. Ord. 35, rule 13.
Where infants are or may be interested in the estate sold, the conveyance must
be settled by the conveyancing counsel of the Court, and in that case the order,
directs the conveyance to be " settled by the judge " : Calvert v. Godfrey, 2 Beav.
267 ; Be Eyre, 4 K. & J. 268, 269.
And the rule is still more binding in a sale under the Settled Estates Act: Be
Eyre, 4 K. & J. 268.
Where land is to he sold in lots, and one conveyance has been settled by the
conveyancing counsel, it may be adopted by the chief clerk for all the rest, in the
absence of special circumstances : Be Eyre, 4 K. & J. 268."
All persons having a legal interest in the property, whether parties to the suit
or not, should concur in the conveyance ; but the purchaser is not entitled to the
concurrence of any persons being parties to the suit, or otherwise bound by the
proceedings therein, whose interests are merely equitable : Dan. 5th ed. 1172 ;
Cok V. Sewell, 17 Sim. 40 ; Be Williams, 5 De G. & Sm. 515 ; Davidson's Conv.
248, n.
And a vesting order of the equity of redemption in an infant's estate, against
whom in a foreclosure suit a decree for sale had been made, has been refused, the
mortgagee having the legal estate, and all the equities being bound by the decree
for sale : Be Williams, 5 De Gr. & Sm. 515.
The purchaser will not be compelled to accept an equitable title without the
legal estate being got in, except, perhaps, in a case where a dry legal estate is
outstanding in an infant : Freeland v. Pearson, L. R. 7 Eq. 246.
Title Deeds.
Let the several deeds, documents, and writings deposited witli the
clerk of records and writs pursuant to the order dated, &c.,be delivered
out to — , the purchaser of Lot — , or to W. — , his solicitor.
If the deeds have been deposited in Court the solicitor conducting the sale
usually applies that they be delivered to the purchaser.
Dealing with Puechase-money.
Where a purchaser has obtained his conveyance he ought not to appear
on an application to deal with his purchase-money, and he will not be allowed,
under ordinary circumstances, his costs of so doing : Barton v. Latour, 18 Beav.
526 ; bat see Bowley v. Adams, 16 Beav. 312 ; Strong v. Strmg, 4 Jur. (N.S.)
943 ; Nolle v. Stow, 30 Beav 272.
Where the purchaser has not obtained his conveyance he will be allowed his
costs of appearmg, although he appears for the purpose of consenting : Bamford
v. Watts, 2 Beav. 201 ; Dan. 5th ed. 1177.
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SALES BY THE COURT. 467
Where the purchaser has had his conveyance the Court requires evidence
that notice has been given to him of the application, and proof that he has had his
conveyance.
Ee-SALB.
Purchaser's Default.
Let a., the person by the chief clerk's certificate [or, order] dated,
^fec., certified to he the purchaser of the (premises comprised in Lot
— , part of the) estate sold under the order dated, &c., on or before
the — day of — , pay into Court to the credit, &c., the sum of £ — ,
the purchase-money for the said premises. And in default of the said
A. paying the said sum of £ — into Court by the time aforesaid, Let the
said premises be re-sold with the approbation of the judge. And in
case no purchaser shall be found for the same at such re-sale, or in
case the same shall be sold for less than the sum of £ — , Let the said
A. within eight days after service of the chief clerk's certificate of the
result of such re-sale pay the said sum of £ — in case the said premises
shall not be re-sold, or the diflference between the said £ — ■ and the
amount for -which the said premises shall be so re-sold, in case the
same shall be re-sold for less than the said £ — (the amount to be paid
in to be certified) into Court to the credit, &o. Let the said A. pay
to — their costs of the order dated &o. [original order to pay in] and
of this order, and their costs and expenses of such re-sale (such costs
to be taxed by the taxing master in case the parties difier).
Contract rescinded — Vendor's Application.
Upon motion, &c., and upon reading, &c., Let the contract dated,
&c., in the pleadings mentioned be rescinded, and Let all further pro-
ceedings in this cause be stayed, except as to any application which
may be made to this Court to award and assess the damages which the
Pits have sustained by reason or in consequence of the breach of the
said contract. Deft to pay Pits their costs of application. Sweet v.
Meredith, 4 Giff. 207.
Discharge of Purchaser — Purchaser's Application.
"Dpon the application of A., the person by the chief clerk's certificate
certified to be [or, by the order dated, &c., allowed] the purchaser of
the hereditaments comprised in Lot — (part of) the estate directed to
be sold by the order dated, &o., and upon hearing, &c., and upon read-
ing, &c., Let the said A. be discharged from being such purchaser.
Let the costs, charges, and expenses of the said A. occasioned by his
bidding for and being allowed the purchaser of the said hereditaments,
and also his costs of the reference as to title, afid of all proceedings
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4:68 SALES BY THE COURT.
conBequent thereon, and of and incident to this application, he taxed
hy the taxing master. [Direction for payment of costs out of fund in
Court.] Perhins v. Ede, 16 Beav. 268.
Ee-sale.
In default of payment by the purchaser of his purchase-money application may
he made for a compulsory order for payment, or for an order that in default of
payment a re-sale may he directed to make good the deficiency in price and pay
the costs occasioned by his default : Oray v. Gray, 1 Beav. 199 ; Harding v.
Harding, 4 My. & Or. 514 ; 3 Jur. 1164.
In default of payment of the purchase-money application may be made by the
vendor to rescind the contract : Froligno v. Martin, 16 Beav. 586 ; Sweet v. Mere-
dith, 4 Giff. 207 ; 9 Jur. (N.S.) 569.
Where either of the parties to the contract has procured the other to enter into
it by means of a misrepresentation or concealment which a Court of Equity con-
siders to be actually fraudulent, the contract may be rescinded : Dart, V. & P.
4th ed. 95 ; citing Turner v. Sarvey, Jac. 169 ; Edwards v. McLeay, Coop.
308 ; Berry v. Armistead, 2 Keen, 221 ; Lovdl v. Eichs, 2 Y. & C. 46 ; Stain-
lank V. Fernley, 9 Sim. 556 ; Attwood v. Small, 6 CI. & P. 232 ; Gibson v.
B'Este, 2 Y. & C. 542 ; Wilde v. Gibson, 1 H. L. C. 605 ; Eeynell v. Sprye,
8 Hare, 222 ; 1 De a. M. & G-. 660 ; Pulsford v. Richards, 17 Beav. 95 ; Jen-
nings V. Brovghton, 17 Beav. 234 ; 5 De G. M. & G. 126, affirmed 23 L. J. 999 ;
Bartlett v. Salmon, 6 De G. M. & G. 33 ; 1 Jur. (N.S.) 277 ; Conybearev. New
Brunswick By. Co., 1 De G. P. & J. 578 ; New Brunswick By. Co. v. Mugge-
ridge, 1 Dr. & Sm. 363.
So, too, where misrepresentations have been made upon a contract between an
individual and a public company : Central By. Co. of Venezuela v. Kisch, L. R.
2 H. L. 99 ; Be Beese Biver Mining Co., L. R. 2 Oh. 604 ; Boss v. Estates Invest-
ment Co., L. R. 3 Eq. 122 ; S. C. 3 Oh. 682.
And gross or wilful delay by either party will entitle the other to avoid the
contract : Lennon v. Trapper, 2 Sch. & Lef. 682 ; Parkin v. Tliorold, 16 Beav.
59 ; Bolerts v. Berry, 3 De G. M. & G. 284, 289 ; Tilley v. Thomas, L. R.
3 Oh. 61.
The vendor after conveyance has no remedy if the property prove to be, as
respects either quantity or value, more valuable than was imagined : Dart, 4th
ed. 679 ; Okill v. Whittaker, 2 Ph. 338 ; 1 De G. & Sm. 83 ; Maiden v. Merick,
2 Atk. 8 ; Marshall v. Oollett, 1 Y. & C. 232 ; Sturge v. Starr, 2 My. & K.
195.
But if the mistake has been mutual relief will be given by the Court, even after
conveyance : Beaumont v. Bramley, T. & R. 41 ; Marquess v. Marchioness of
Exeter, 3 My. & Or. 321 ; Mortimer v. Shortall, 2 D. & W. 363; Harris v.
Pepperell, L. R. 5 Eq. 1 ; Earl of Bradford v. Earl of Bomney, 30 Beav. 431.
Mere inadequacy ot consideration, unless shewn to be the result of fraud, sur-
prise, or misrepresentation, and unless a fiduciary relation exists between the
parties, is not ground for relief; Sug. V. & P. 14th ed. 244 ; Dart, V. & P.
684 ; Peckett v. Loggon, 14 Ves. 215 ; Beynell v. Sprye, 8 Hare, 222 ; 1 De G.
M. & G. 660 ; Denton v. Donner, 23 Beav. 285.
The non-emplpyment of ^ solicitor on the vendor's behalf does not make a sale
impeachable for undervalue, if the vendor be fully aware of the nature of the
transaction : Harrison v. Guest, 6 De G. M. & G. 424 ; 8 H. L. 0. 481.
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SALES BY THE COUET. 469
But the purchase from an illiterate sick man shortly before his death, at an
undervalue and without proper protection, was set aside at the instance of his
heir-at-law : Glwrh v. Malpas, 31 Beav. 80 ; 8 Jur. (N.S.) 734.
Even after conveyance, where the vendor relied upon information furnished to
him by the purchaser, and materially incorrect, relief has been given in equity :
Oarpmael v. Powis, .11 Jur. 158 ; 10 Beav. 36.
And as a general rule, where it is clearly shewn that through mutual mistake,
or by reason of fraud, the conveyance fails to express the intention of the parties,
and what that intention really was, a Court of Equity will rectify it : Dart, 4th
ed. 695 ; Brougliam v. Squire, 1 Drew. 151 ; Marquis of Breadalhane v. Marquis
of aiMTidos, 2 My. & Or. 711.
No purchase made lonafide, and without fraud or unfair dealing, of any rever-
sionary interests in real or personal estate shall in future be opened or set aside
merely on the ground of undervalue : 31 Vict. c. 4.
, If the title prove on inquiry to be bad, the purchaser is entitled to be dis-
charged from his purchase, and to be paid his costs, charges, and expenses pro-
perly incurred, occasioned by his bidding for and being allowed the purchaser of
the property, and also the costs of the reference as to title, and of all proceedings
consequent thereon : Perkins v. Ede, 16 Beav. 268 ; see also Reynolds v. Blake,
2 S. & S. 117 ; Att.-Gen. v. Corporation of Newark, 8 Sim. 71 ; Mullins v.
Eussey, L. E. 1 Eq. 488.
Where the purchaser makes good his objections, and there is no fund in Court,
the pit will be ordered to pay them without prejudice to the question how they
are ultimately to be borne : Smith v. Nelson, 2 S. & S. 557 ; see also Berry v.
Johnson, 2 Y. & C. Ex. 564;
A purchaser cannot in general determine his contract without due previous
notice : Taylor v. Brown, '2 Beav. 180 ; Wood v. Machin, 5 Hare, 158 ; Quest
V. Bamfray, 5 Ves. 818 ; see also Nott v. Biccard, 22 Beav. 307.
And time, although of the essence of the contract by original agreement, or
made inoperative by equity by subsequent notice, may be enlarged or waived by
subsequent agreement, or by conduct of the parties amounting to waiver : Dart,
4th ed. 390 ; Cutis v. Codley, 13 Sim. 206 ; Nohes v. Lord Kilmorey, 1 De G.
& Sm. 444.
Any alteration of the subject-matter of the contract by the vendor in any par-
ticular which does not admit of compensation or reinstatement wiE entitle the
purchaser to abandon the contract: Dart, 4th ed. 406; Magennis v. Fallon,
2 Moll. 588.
And alterations by a purchaser may deprive him of his right to rescind the
contract : Sug. V. & P. 14th ed. 254, 255 ; Dart, 4th ed. 405.
If the purchaser has a right to rescind the contract, he may bring an action to
recover back his purchase-money : Sug. V. & P. 14th ed. 237.
And where, pending the investigation of a point upon title, the vendor and his
solicitor induced the purchaser to pay the purchase-money, and fraud was estab-
lished, the contract was rescinded, and the vendor ordered to repay the purchase-
money with interest, costs, charges, and expenses, and costs of suit : Edwards v.
McLeay, Coop. Eep. 318 ; Lovell v. Hicks, 2 Y. & C. 51.
But there are few cases in which a purchaser can get relief from his contract on
the ground of the purchase-money being exorbitant : Sug. V. & P. 14th ed. 245,
273.
Nor does a vendor easily obtain relief on the ground of inadequate consideration :
Ibid. 245.
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470 SALES BY THE COUET.
The practice of opening the biddings on any sale by auction of land under or by
virtue of any order, &c., shall from and after the time appointed for the com-
mencement of this Act, be discontinued, " and the highest hand fide bidder at
such sale, provided he shall have bid a sum equal to or higher than the reserved
price (if any), shall be declared and allowed the purchaser, unless the Court or
judge shall, on the ground of fraud, or improper conduct in the management of
the sale, upon the application of any person interested in the land (such applica-
tion to be made to the Court or judge before the chief clerk's certificate of the
result of the sale shall have become binding), either open the biddings, or dis-
charge him from being the purchaser, and order the land to be resold upon such
terms as to costs or otherwise as the Court or judge shall think fit " : 30 & 31
Vict. c. 48, s. 7.
Where the purchaser under a sale by the Court stands in such a fiduciary
position as to be disqualified from purchasing, the holdings may be opened or the
purchase set aside : Qv^st v. Smythe, L. R. 5 Ch. 551, 556.
To establish a case for opening the biddings, or for a re-sale, on the ground of
improper conduct in the management, there must have been such impropriety as
seriously to depreciate the property : Brown v. Oakshot, W. N. (1869) 207.
Substituted Purchaser.
Upon the application of, &c., Let B. [substituted purchaser] he at
liberty on or hefore the — day of — to pay into Court to the credit of,
&c., the sum of £ — .
And upon such payment being made. Let the said B. be substituted
as the purchaser of the premises, &c., in place of A., and be let into
possession, &c. [Directions for conveyance, investment, &c.]
If after becoming the bidder for an estate, the purchaser is desirous of being
discharged from his contract, and of substituting another person in his stead, the
Court will make an order to that effect on the application by summons of the
original and sub-purchasers, or of either of them, with the consent of the other :
Dan. 5th ed. 1181.
The Court will not make the order against the desire of the original purchaser
and vendors : Be Goodwin, 8 Jur. (N.S.) 1173 ; 4 Giff. 90.
And the order is conditional upon the purchase-money being paid : Bigby v.
Macnamara, 6 Ves. 515.
The Court will not make the order without an affidavit that there is no under
bargain : Bighy v. MacnaTnara, 6 Ves. 515 ; Vale v. Davenport, 6 Ves. 614.
After the certificate of the chief clerk has become binding, the purchaser may
re-sell at an advanced price for his own profit : Dewell v. Tu/nell, 1 K. & J. 324.
If a purchaser re-sells behind the back of the Court before the certificate is
binding, the second purchaser is considered a substituted purchaser, and must pay
the additional price into Court for the benefit of the parties to the suit : Dan.
5th ed. 1182 ; Sug. V. & P. 100; Dart. 1087.
Where a purchaser under a sale by the Court, whose purchase had been con-
firmed, agreed to re-^ell to D., and died leaving an heir who was abroad, D. was
(by consent) substituted as purchaser : Pearce v. Pearce, 7 Sim. 138.
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SALES BY THE COURT. 471
Sales of Goods, Merchandise, &c.
" It shall be lawful for the Court or a judge, upon the application of any party
to any action, to make any order for the sale, by any person or persons named in
such order, and in such manner, and upon such terms as to the Court or judge
may seem desirable, of any goods, wares, or merchandise which may be of a
perishable nature, or likely to injure from keeping, or which for any other just
and sufficient reason it may be desirable to have sold at once : " Jud. Rules,
Order 52, rule 2.
The application may be made by any party. If the application be by the
plaintiff it may be made after notice to the defendant at any time after the issue
of the writ of summons, and if it be by any other party, then on notice to the
plaintiff, and at any time after appearance by the party making the application :
Jud. Bules, Order 52, rule 4.
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( 472
CHAPTER XXVIII.
PAETITION.
Inquiries — Parties — Shares.
Let an inquiry be made who are the parties respectively entitled to
the lands [messuages] and premises in the pleadings mentioned, and
for what estates or interests respectively, and in what shares and pro-
portions, and whether they are respectively parties to this action. —
Adjourn further consideration. — Liberty to apply.
Inquiries — Partition in Chambers,
Let an inquiry be made who are the parties respectively entitled to
the lands [messuages] and premises in the pleadings mentioned, and
for what estates or interests respectively, and in what shares and pro-
portions, and whether they are respectively parties to this action.
And if it shall be certified that all the parties entitled to or interested
in the said lands [messuages] and premises are parties to this cause,
Let a partition be made of the same into as many parts as the same
shall be certifi.ed to be divisible into. And Let such shares be allotted
to the parties to whom the same shall be certified to belong in such
proportions and for such estates and interests as shall be certified.
And such parties are to hold and enjoy their respective shares and
proportions of the said hereditaments in severalty according to such
allotments, and to their respective estates and interests therein. Let
the Pits and Defts execute mutual conveyances to each other according
to their respective interests therein, such conveyances to be settled by
the judge [If no infants or married women interested, add : in case the
parties differ]. Let all deeds and writings relating to the said heredi-
taments in the custody or power of any of the parties be produced
upon oath before the judge as he shall direct. And Let such parts
thereof as relate to the premises which shall be allotted to each of the
said parties be delivered to them respectively. [If infant Pit or Deft :
Let such deeds and writings relating to the said hereditaments in the
custody or power of any of the parties as exclusively relate to such part
of the said hereditaments as shall by such partition be allotted to the
infant Pit [or, Deft] be deposited with the clerk of records and writs
in safe custody on behalf of the infant Pit [or, infant Deft] until
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PA-BTITION. 473
further order.] If parties jointly interested : Let such deeds and writings
as relate to any part of the said hereditaments which shall be allotted
to one of the said parties jointly with other parts allotted to the other
or others of them, be also deposited with the clerk of records and
writs until further order.] — Liberty to apply.
Partition in Chambers — Infant.
Declare that each of the Pits and Defts is entitled to an equal
undivided — part of the lands [messuages] and premises in the plead-
ings mentioned. And Let the said hereditaments be partitioned,
divided, and allotted accordingly. Let the Pits and Defts hold and
enjoy their respective shares in severalty according to such allotment,
and execute mutual conveyances to each other according to their re-
spective interests therein, such conveyances to be settled, &c. [If
Pit or Deft is an infant : Declare that the Pit H. or Deft B. is a trustee
within the Trustee Act, 1 850, of his undivided — part of the said
lands [messuages] and premises. Let — the guardian of the said
infant Pit \_or, Deft] execute mutual conveyances to each other, to be
settled by the judge, &c.] — Directions for delivery of deeds, &c.
Partition — General Declaration of Trust — Trustee appointed.
Declare that (except as regards their own respective allotments)
the several persons parties to this suit having any undivided interest
in the estate, &c., are respectively trustees within the meaning of the
Trustee Acts as regards the premises in their undivided state for the
several parties to whom the same have respectively so been allotted in
severalty. And it being expedient to appoint one new trustee in
their place for the purpose of assigning the said allotted premises in
severalty to the respective parties entitled to the same, and it being
inexpedient or impracticable to appoint such new trustee without the
assistance of this Court, Let A. A. G. be appointed sole trustee of
the said leasehold hereditaments in the place of the several parties so
hereby declared to be trustees thereof. And Let the said heredita-
ments so held in trust vest in him for all the residue of the term.
Let A. A. G. assign the said divided premises to the said parties to
whom the same have so respectively been allotted as follows [specify-
ing the particulars']. Shepherd v. Churchill, 3 Beav. 23.
Partition without Reference — Plan.
Declare that each of the Pits is entitled to an equal undivided
sixth part of the lands and hereditaments situate, &c., and that the
infant Deft J. 0. is entitled to the two remaining undivided sixths of
the said hereditaments as to one of such sixths in his own right, and
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474 PARTITION.
as to the remaining sixth as heir-at-law of C. deceased. Declare that
it will be for the benefit of the infant Deft J. C. that the said heredi-
taments should be partitioned, divided, and allotted according to the
allotment delineated and appearing in and by the map or ground plan
thereof marked A., verified by the affidavit of — . Let the said heredi-
taments be partitioned, divided, and allotted accordingly. Let the
Pits and the said Deft hold and enjoy their respective shares in
severalty according to such allotment. Declare that the infant Deft
is to be deemed a trustee within the meaning of the Trustee Acts of
his share in the premises in their undivided state for the several
parties to whom the same had been allotted in severalty. Let — , the
guardian of the infant Deft and the Pits, execute mutual convey-
ances, &c., to be settled by the judge. — Directions as to title-deeds. —
Liberty to apply. Gollinson v. Collinson, 1856, A. 1085 ; Seton, 572.
Partition after trial of disputed Title — Payment of Bent by Defts to Pits.
Declare that the Pit W. P. Gr., as tenant for life in possession, and
the Pit T. C. G-., as tenant for life in remainder, and the Pit W, E. H.,
in right of his wife the Pit C. H. as tenant in tail in remainder, are
entitled to one moiety, and the Deft R. W. and C. M. his wife are
entitled to the other moiety of a certain field situate, &c., in the
pleadings mentioned. Let, having regard to the above declaration, a
partition be made of the said fi.eld by the judge in chambers, and
any of the parties are to be at liberty to lay proposals before him as to
such partition. Let the said field be divided into moieties, and Let
one moiety' thereof be allotted as the share of the said Defts. Let the
said Pits and Defts hold and enjoy their respective moieties in severalty
Recording to such allotments, and execute mutual conveyances to
each other according to their respective interests therein, such con-
veyances to be settled by the judge. Let the Defts E. W. and C. M.
his wife pay to the Pit W. P. G. the sum of £22, being his amount of
the rent at the rate of £2 per annum from 25th March, 1861, paid for
the Pit's moiety of the said field to the tenant of suc!^ moiety, and
received by the said Defts E. W. and C. M. his wife. Let the Deft C.
(the mortgagee) be at liberty to add his costs of this cause (to be
taxed by the taxing master as between solicitor and client in case the
parties differ) to his security.— Liberty to apply. Oiffard v. Williams
(V.-C. W.), March 17, 1872.
Advowson — Alternate Presentations.
Declaee that the Pit is entitled to have a partition of the advow-
son of the vicarage of the parish church of W., in the county of Kent,
into moieties, to present by alternate turns. Let a partition be
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PARTITION. 475
accordingly made thereof into moieties between the Pit and the Deft
S. Let the Pit and the Deft S. execute mutual conveyances to each
other so that the Pit may hold one moiety of the said advowson to
him and his heirs, and that the Deft S. may hold the other moiety
thereof to her and her heirs as tenants in common in severalty re-
spectively. And in such conveyance Let a clause be inserted that the
Pit and his heirs and the Deft S. and her heirs shall present to the
said vicarage in alternate turns. Let the conveyances be settled by
the judge in case the parties differ. And Let the charges of the con-
veyances be borne equally between the Pit and the Deft S. And it
appearing that J. S., under whom the Deft S. claims, hath since the
agreement for a partition of the premises presented upon the last
avoidance of the said vicarage. Let the Pit present on the next
avoidance. Sodicoate v. Steers, 1 Dick. 69.
Partition hy Commission.
Let a commission issue directed to certain commissioners to be
therein named to divide the estate in question into moieties. Let one
moiety thereof be allotted as the share of the Pits, and the other moiety
thereof as the share of the Defts. Let the Pits and Defts hold and
enjoy their respective moieties in severalty according to such allot-
ments, and execute mutual conveyances to each other of such respec-
tive moieties according to their respective interests therein, such
conveyances to be settled by the judge. [If no infants or married
women, add : in case the parties differ about the same]. Let all deeds
and writings relating to the said estate in the custody or power of
any of the parties be produced before the commissioners upon oath as
they shall require. Let the commissioners be at liberty to examine
witnesses upon oath, and take the depositions in writing, and return
the same into the commission. — Liberty to apply. Seton, 571.
Partition hy Commission — Manor and Advowson — Infant — Trustee out of
Jurisdiction — Title-deeds.
Directions for commission to divide the manor and advowson of the
rectory of H. in the Pit's bill mentioned, and the hereditaments and
premises thereto belonging, into — shares. Let — shares be allotted
to the Defts J. T. and T. J. respectively, according to their respective
estates and interest therein, but subject to and charged with one equal
third part of the mortgage debt or sum of £— and the interest thereon,
secured by the indenture dated, &c., in the pleadings mentioned.
— Like directions as to two other shares subject to the other thirds
of the mortgage debt. Let — shares be allotted to the Defts H. J.
and E. P., the surviving trustees of the indenture dated, &c., upon the
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^76 PARTITION.
trusts of the said indenture.— Like directions as to the other shares, —
Pits and Defts to hold and enjoy their respective allotments in sever-
alty. Let the Pits and Defts interested in the said respective shares
other than the Deft T. J. execute mutual conveyances to each other
and to the said infant of such respective shares, according to their re-
spective interests therein. — Declaration that the infant and. party out
of the jurisdiction are trustees within the Act, and one of the parties
appointed to convey. — Directions to produce documents and for exam-
ination of witnesses. — And after the commissioners shall have made
their certificate, and the same shall have been returned and confirmed.
Let such of the said deeds and writings as shall relate exclusively to
any particular allotment be delivered to the owner or owners of such
allotment. Let all deeds and writings relating to two or more allot-
ments be delivered to the owner or owners of that allotment or that
portion of the allotment affected by such deeds and writings which
shall be of the greatest value. Let such owner or owners enter into
covenants with the owner or owners of the other allotment or allot-
ments for the production and delive];y of copies, abstracts, or extracts,
and the safe keeping of such deeds and writings. Let such covenants
be settled by the judge in case the parties differ. Let the Pits and
Defts respectively, other than the Deft H. J. the trustee, bear their
own costs prioi'to the issuing of the said commission. Let the costs
of issuing, executing, and confirming the commission be borne by the
several parties rateably and in proportion to the value of their respec-
tive shares. Let the costs properly incurred of the Deft H. J., the
trustee, be paid by the Defts respectively and rateably, and in propor-
tion to the value of their said several shares, such costs to be taxed in
case the parties differ. — Liberty to apply. Broohe v. Brooke (V.-C. W.),
July 8, 1854 ; Seton, 586.
Partition hy Commission — Metes and Bounds — Special Provision as to
Title-deeds.
LiiT the Deft convey the legal estate vested in him of and in the
one-seventh of the legal estate in the hereditaments and premises
situate, &o., to the Pit, his heirs and assigns, such conveyance to be
settled, &c. Let a commission of partition issue directed to certain
commissioners to be therein named to divide the said hereditaments
and premises in question into seven equal parts, and to make such
partition in metes and bounds when they shall see occasion. Let six-
sevenths thereof be allotted as the share of the Pit, and one-seventh as
the share of the Deft E., who are to hold and enjoy the respective
shares and proportions of the said estates in severalty according to
such allotment, and execute mutual conveyances of such respective
shares or proportions according to their respective interests therein.
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PARTITION. 477
and as they may respectively direct, such. conveyaHce to be settled, &c.
Let the Deft E. be appointed to convey the said hereditaments in the
place and stead of E. H. W., and Let the said Deft E. convey the same
accordingly. Let all deeds and writings in the custody or power of
any of the parties be produced before the commissioners upon oath as
they shall require, and the said commissioners are to be at liberty to
examine witnesses upon oath, and take the depositions in writing and
return the same with the commissioners' report. And after making
such partition and division, Let such of the title-deeds and writings as
shall appear to relate solely to any distinct part of the said heredita-
ments and premises which shall be allotted to either party be deli-
vered to such party. Let the Pit be at liberty to retain the rest of such
title-deeds and writings, he undertaking to abide by any order which
this Court may make as to the same. And either party is to be at
liberty to apply to this Cotirt for directaons concerning the same. Let
the charges of such partition be borne rateably and in proportion to
the estates so to be allotted to them. — Liberty to apply. Jones v.
Bohinson, 3 De G. M. & G. 910.
Partition hy Commission — Deposit of Deeds — Infant.
Let a commission of partition issue, &o. Usual directions for
allotment and conveyance, and for production of deeds and examination
of witnesses. And after such partition shall have been so made and
conveyances executed. Let such deeds, writings, surveys, and muni-
ments, or other evidences of title relating to the said messuages, &c.,
in the custody or power of any of the parties as exclusively relate to
such part of the said real estate as shall by such partition be allotted
to either of the Pits alone, be allotted to them respectively. Let such
deeds and writings, surveys and muniments, or other evidences of title
relating to the said messuages, &c., in the custody or power of any of
the parties as exclusively relate to such part of the said real estate as
shall by such partition be allotted to the infant Pit be deposited with
the clerk of records and writs for safe custody on behalf of the infant
Pit until further order. Let such deeds and' writings, surveys and
muniments, or other evidences of title (if any) as relate to any parts
of the said real estates that shall be allotted to one of the said parties
jointly with other parts allotted to the other or others of them, be also
deposited with the clerk of records and writs until further order. —
Liberty to apply. Langton v. Burton, 1853, B. 851 ; Seton, 581.
(. Advowson — Presentation — Sale.
J-
Dbclaee that the right of presentation to the rectory of G. men-
tioned in the will of J. the testator in the petition n amed, upon the avoid-
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478 PARTITION.
anoe thereof by the death of the testator's son W., the last inciimhent
thereof, passed by the will of the testator J., and that such right of
presentation is now vested in the Deft J. L. (the surviving executor of
the win and devisee of the trust estates of the Deft L., deceased, who
was the surviving trustee of the will of the said testator J.), for the
benefit of the following seven persons, that is to say, &o. And such
persons not agreeing upon the clerk to be nominated for presentation
to the said living by the said J. L., Let such seven persons, or their
respective solicitors on their behalf, draw lots before the judge which
of them shall nominate a clerk to be presented to the said living. Let
the said J. L. present to the said living upon the said avoidance such
clerk as shall be nominated by the person who shall be certified by
the chief clerk as the person entitled to nominate such clerk.
Let, as soon as may be after such presentation shall have been
made, the advowson of the said rectory of C, and the testator's
messuages, lands, and hereditaments situate in the parish of C. in the
county of S., be sold with the approbation of the judge. — Money to be
paid into Court. — Directions as to costs. — Further consideration of peti-
tion adjourned. Johnstone v. Baber, 6 De Gr. M. & G. 439 ; Seton, 587-
Partition and Sale — Title of Parties proved — Trustee Act, 1850.
Declare that each of the Pits are entitled to a sixth, &c. And the
Pits and Deft E. C. by their counsel respectively desiring that a par-
tition should be made of such parts only of the said hereditaments as
are comprised in the first schedule to the affidavit of J. L., and that the
hereditaments comprised in the second and third schedules to the said
affidavit, being the remaining parts of the said copyhold heredita-
ments, shall be sold, and the Court being of opinion that a sale of the
said hereditaments comprised in the said second and third schedules
and a distribution of the proceeds will be more beneficial to the infant
Deft than a partition of the said premises. Let a partition of the
hereditaments comprised in the said first schedule be made by the
judge in Chambers. — Directions for allotment of the respective sixths.
— Let the Pits and Defts respectively hold and enjoy their respective
shares in severalty according to such allotments. Declare that infant
Deft B. is a trustee within the meaning of the Trustee Act, 1850.
Appoint J. B. to surrender and assure, &c. — Mutual surrenders and as-
surances to be executed. — Let the hereditaments comprised in the
second and third schedules be sold with the approbation of the judge,
and the money to arise by sale paid into Court to the credit of the
cause. Declare that upon such payment the infant Deft will be a
trustee of her undivided sixth of the hereditaments comprised in the
said second and third schedules within the meaning of the Trustee
Act, 1850. Let J. B. be appointed to surrender and assure the same
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PARTITION. 479
on her behalf. — Liberty to apply in chambers for payment of costs of
suit out of proceeds of sale, and for distribution of the said proceeds,
and generally. Boebuch v. Chadehet, L. E. 8 Eq. 127.
Partition.
Partition at law has operated hy the judgment of a Court of law and deliver-
ing up possession in pursuance of it. Partition in equity has proceeded upon
conveyance to be executed by the parties ; and if the parties he not competent to
execute the conveyances the partition cannot be effectually had : Lord Red. p. 120 ;
Whaley v. Dawson, 2 Sch. & Lef. 371, 372.
In cases of infancy the infant is declared a trustee within the Trustee Act,
1850 (see sects. 7 and 30) of such portions as are awarded to the other parties:
Bmura v. Wright, 4 De G. & Sm. 265.
Where there are no suspicious circumstances, hut the title was clear at law, the
remedy for a partition in equity was as much a matter of right as at law : Story,
10th ed. vol. i. 648.
A suit for partition camiot he maintained by a person interested as a joint
tenant or tenant in common in reversion or remainder : Evans v. Bagshaw, L. B.
8 Eq. 469 ; affirmed L. R. 5 Ch. 340.
Nor where the title being purely legal the main purpose of the suit was not
partition but to prove the legal title : Bolton v. Bolton,' L. B. 7 Eq. 298, n. ;
Slade V. Barlow, L. B. 7 Eq. 296 ; Cfiffard v. Williams, L. R. 5 Ch. 546 ; cited
in Dan. 5th ed. 1022.
If a pit has no title to maintain his suit at the time when the bill was filed he
cannot carry on the suit by subsequently acquiring a title and amending the bill :
Evans v. Bagshaw, L. R. 5 Ch. 340.
The partition is binding only upon those parties who are before the Court :
Agar v. Fairfax, 17 Ves. 544.
But the decree is binding upon remaindermen not in esse, as they are considered
to be represented by the tenant for life : Oaskdl v. Oaskell, 6 Sim. 643 ; Brooks
V. HeHford, 2 P. Wms. 518.
The Court will in some cases direct a reference whether it will be for the benefit
of the remainderman that the partition should be carried into execution, and.
whether with any variations : Gashell v. Gaskell, 6 Sim. 643.
And where the different interests in a property have been dealt with, the par-
tition will be made having regard to those dealings : Storey v. Johnson, 1 Y. & C.
538; S. C. 2 T. & C. 586.
Where the defts in a partition suit desired that there should be no partition of
their shares, the partition was confined to the aliquot share of the pit : Hohson v.
Sherwood, 4 Beav. 184.
It is not necessary that every, part of the estate to be partitioned be divided,
provided each person has his share of the whole : Earl of Clarendon v. HorTlby,
1 P. Wms. 446 ; Sug. 918.
In the case of an advowson, the practice has been not to issue a commission^
hut to make the partition by the decree : Bodicote v. Steers, 1 Dick. 69 ; Order,
p. ^74:; Johnstone v. Baher, 22 Beav. 562; 6 De G. M. & G. 439; Order, p. 477.
And where an advowson had teen devised to trustees in trust for sale upon the
death of the incumbent, and to divide the proceeds between seven persons as
tenants in common, the tenants in common not agreeing in their choice the pre-
sentation was ordered to be by lot : Johnstone v. Baler, supra.
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480 PARTITION.
Peconiary Compensation.
Courts of Equity may decree a pecuniary compeusation to one of the parties for
equality of partition : Calmady v. Calmady, 2 Ves. Jun. 570 ; Earl of Clarendon
V. Eornby, 1 P. Wms. 446, 447.
But commissioners appointed under a decree cannot award a sum to be paid for
owelty of partition : Mole v. Mansfield, 15 Sim. 41.
Where one tenant in common has been in the exclusive perception of the rents
and profits on a bill for partition and account, an account will be decreed : Larimer
V. Larimer, 5 Madd. 363 ; Storey v. Johnson, 1 Y. & C, 538 ; S. C. 2 Y. & C. 586.
So where one tenant in common supposing himself to be legally entitled to the
whole has erected valuable buildings, he will be entitled either to an equitable
partition or to compensation : Story, 10th ed. vol. i. p. 649.
Commission.
It has been said that where the partition is to be by commission, the commission
ought not to be embodied in the decree on the hearing, but should be postponed
till after the reference and until further consideration; Ode v. Sewell, 15 Sim. 284.
But this is not the present practice, and where the title of the parties is proved
the Court will at the original hearing order a commission of partition to issue
without previous inquiry.
The Court will if necessary direct an inquiry to ascertain the shares in which
the parties are entitled, and by the same order direct a commission to issue after
that inquiry has been made: Agar v. Fairfax, 17 Ves. 533, 553.
But the inquiries are made at chambers, not by the commissioners, and the
decree adjourns further consideration: S. C.
Where commissioners of partition are directed to divide lands equally between
the parties entitled, their duty after dividing the lands into proportions of equal
value in the market is to assign them to those parties respectively to whom they
would be of most value with reference to their respective situations in relation to the
property before the partition took place : Storey v. Johnson, 1 Y. & C. (Ex.) 538, n.
The names of the commissioners should be agreed upon between the parties.
Not less than four names will be inserted in the commission, unless the Court
otherwise directs : Dan. 4th ed. 1073 ; Cons. Ord. 3, r. 1 ; Watson v. Duke of
Northumberland, 11 Ves. 153, 163; Howard v. Barnwell, 2 N. E. 414.
If the witnesses are to be examined upon interrogatories, a direction to that
eBFect must be inserted in the decree and commission : Braithwaite's Pr. 234.
Usually also the decree directs that all deeds and writings relating to the estate
and in the custody of any of the parties be produced upon oath as the commis-
sioners shall require.
When the commission has been returned and filed in the Report Ofiioe, an order
nisi, and afterwards an order absolute confirming the certificate, are obtained upon
motion.
Where gross errors in judgment have been committed by the commissioners, the
Court will set aside the adjudication : Storey v. Johnson, 1 Y. & C. (Ex.) 538.
Injunction after Decree in Partition Suit.
After a decree in a partition suit, the Court has jurisdiction to grant an injunc-
tion to restrain a deft from destroying or wasting the property : Bailey v. ffobson,
L. R. 5 Ch. 180.
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PARTITION. 481
But where after decree for sale in a partition suit a deft, who was in occupation
of the property, hut bound by no contract of tenancy, proposed to sell crops off
the land, a motion for an injunction was refused : S. C.
Costs.
" In a suit for partition the Court may make such order as it thinks just re-
specting the costs up to the time of hearing " : 31 & 32 Vict. c. 40, s. 10.
Usually no costs are given up to the hearing ; nor is it usual to direct that the
costs of making out the title be borne in proportion to the respective interests.
But the costs of issuing, executing, and confirming a commission of partition, or
of a partition by the Court, or of a sale in Ueu of partition, are ordered to be borne
by the parties in proportion to the value of their respective interests : Agar v.
Fairfax, 17 Ves. 533, 557, per Lord Bldon ; Landell v. Baker, L. R. 6 Bq. 268.
But the costs of suit up to the hearing, as well as the subsequent costs, have
been ordered to be borne by the several parties in proportion to their interests,
as declared by the decree : Cannon v. Johnson, L. R. 11 Bq. 90. See also Osborn
V. Osborn, L. R. 6 Eq. 338 ; Miller v. Marriott, L. B. 7 Bq. 1.
The costs of infants and married wornen, including costs incurred before
decree, may be ordered to be a charge upon his or her share : Agar v. Fairfax,
supra ; Shepherd v. Churchill, 25 Beav. 21 ; Cox v. Cox, 3 K. & J. 554 ; Fleming
V. Armstrong, 34 Beav. 109, where a sale was ordered. So too in case of a luna-
tic : Singleton v. EopJcins, 1 Jur. (N.S.) 1199 ; 4 W. R. 107.
Where it has appeared to the Court to be for the benefit of infants, orders have
been made for sale for the purpose of raising costs : Richards v. Richards, 15 W. R.
380 ; Eubbard v. Euhhard, 2 H. & M. 38 ; Griffies v. Griffies, 11 W. R. 943.
But this practice would appear to be superseded by the provisions of the Parti-
tion Act, 31 & 32 Vict. c. 40.
This Act has not altered the practice of the Court with respect to the costs of a
partition suit : Landell v. Baher, h. R. 6 Bq. 268.
The Paetition Act, 1868.
31 & 32 Vict. c. 40.
Sale — Order under Sect. 3.
The Pits [or, — ] by their counsel requesting a sale of the lands and
premises situate, &o., and it appearing to the Court that by reason of
the nature of the said property [or, of the number of the parties alleged
to be interested or presumptively interested therein, &c.,] a sale of the
property and a distribution of the proceeds will be more beneficial for
the parties interested than a division of the property between or
among them, Let an inquiry be made who are the parties interested
in the said lands and premises, and in what shares and proportions,
and for what estates and interests. And if it shall be certified that all
the parties entitled to or interested in the undivided shares in the said
hereditaments are parties to this cause, and that — [the parties re-
questing the sale] are some of such parties, Let the said lands and
premises be sold with the approbation of the judge. — Directions for
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482 PARTITION.
payment into Court of purchase-money. — Adjourn further considera-
tion.— Liberty to apply. Mildmay v. Quicke (M. E.), L. E. 20 Eq. 537 ;
Brinkwater v. Batcliffe, L. E. 20 Eq. 628.
Sale — Order under Sect. 4.
The Pits [or, — ] who claim to he interested to the extent of a
moiety or upwards of the property hereinafter mentioned, by their
counsel requesting a sale of the said property, and a distribution of
the proceeds, instead of a division of the said property between the
parties interested. Let an inquiry be made who are the parties inter-
ested in the lands situate, &c., and in what shares and proportions,
and for what estates and interests. And if it shall be certified that
all the persons interested in the said hereditaments and premises are
parties to this suit, and that the Pits [or — ] requesting the sale are
interested to the extent of one moiety or upwards in the said property.
Let the said hereditaments be sold with the approbation of the judge.
— Directions for payment into Court of purchase-money. — Adjourn
further consideration. — Liberty to apply. Thornton v. Hunt ( V.-G. H.),
Feb. 13, 1875.
Sale — Order under Sect. 5.
The Defts W. G., G. G., and E. P., by their counsel undertating to
purchase the one-seventh share to which the Pits are entitled of the mes-
suages and lands situate, &c., and also the one-seventh shai-e of the said
premises to which the Deft J. L. is entitled, at a valuation. Let a
valuation be made in Chambers of such shares respectively accord-
ingly. And in case the said Defts W. G., G. G., and K. F., shall require
the same. Let an inquiry be made whether a good title can be made to
the said shares respectively. And in case the said Defts shall not
require such inquiry, or in case it shall appear that a good title can
be made, Let the Defts W. G., G. G., and E. F., within ten days after
the date of the chief clerk's certificate pay to such persons as shall be
certified to be entitled to receive the same the respective amounts of
such valuation. And thereupon Let the Pit and the Deft J. L., or
such of them as shall be necessary, and all other necessary parties,
execute a proper conveyance of the said shares respectively to the Defts
W. G., G. G., and E. F. (such conveyance to be settled by the judge),
and Let the costs of such valuation be paid by the said W. G., G. G.,
and E. F. (such costs to be taxed, &o., in case the parties differ). Let
the following further inquiry be made : An inquiry who, having
regard to the directions hereinbefore contained, and upon the comple-
tion of the purchase hereinbefore directed, are or will be the parties
respectively entitled to the said premises, and for what estates and
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PARTITION. i'iS
interests, and in what shares and proportions. And if it shall be cer-
tified that all the persons entitled to or interested in the said premises
are parties to the snit, Let a partition be made in chambers of the
said messuages, lands, and premises between the parties interested
therein.
And Let the several portions which shall be allotted to the parties
in respect of their respective shares and interests, be held by them
respectively in severalty according to such allotments, but subject to
the settlements and incumbrances affecting the same respectively. Let
the parties execute mutual conveyances of the said allotments (such
conveyances to be settled by the judge).— No order as to costs of suit
up to and including the hearing thereof. — Liberty to apply. Williams
v. Garnes (M. E.), Feb. 20, 1874; reversed, L. E. 10 Ch. 204.
Sale of Advowson — Costs to be a Charge — Title of Parties proved.
Deolaee that the advowson, direction, and perpetual right of presen-
tation in and to the vicarage of the parish church of Newchurch, in
the Isle of Wight and county of Southampton, is divisible among the
Pit and Defts (as the co-heiresses-at-law of W. Y., deceased, the intes-
tate in the bill named), in equal third parts. Eefer it to the taxing
master to tax the Pit and Defts their costs of this suit. Declare that
the costs of the infant Pit and Defts be a charge on their respective
fihares in the said advowson. And it appearing -^hat for the purpose
of raising the said costs, and by reason of the nature of the said
property, a sale of the said advowson, and a distribution of the pro-
ceeds thereof, after payment of such costs, will be more beneficial for
the parties interested than a partition of the property between them.
Let the said advowson be sold with the approbation of the judge, and
the money to arise from the sale paid into Court to the credit, &c. —
Liberty to apply. Young v. Young, L. E. 13 Bq. 175, n. ; France v.
France, L. E. 13 Eq. 173 ; but not followed as to costs in Bavey v.
Wiellislacl, L. E. 16 Eq. 426.
Sale — Title of Parties proved — Trustee Act, 1850 — Tnfants— Costs made
a Charge.
Declare that the hereditaments situate at, &c., are divisible into
moieties, and that the Pit is entitled to one moiety thereof, and the
Defts to the other. moiety thereof. Declare that the costs of the infant
Deft of this suit, up to and including the hearing thereof, are a charge
on the share of the said hereditaments belonging to the said infants.
And it appearing to be for the benefit of the said infants that the whole
of the said hereditaments should be sold for the purpose of paying the
said eosts of the infants out of their shares, and the Pits by their bill
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484 PABTITION.
praying a sale instead of a partition thereof, Let the said hereditaments
situate, &c., he sold accordingly, with the approhation of the judge, for
the purpose of paying the said costs of the infants out of the shares of
the said infants. And Let the money to arise by such sale be paid
into Court to the credit of this cause. — Adjourn further consideration.
Thackeray v. Parker, 1 New Eep. 567 ; Davis v. Turvey, 2 NewEep.
161 ; 9 Jur. (N.S.) 954.
Sale out of Court — Title of Parties proved — Trustee Act, 1850 — Costs to
Trustees — Application of Purchase-money.
The Court heing of opinion that a sale of the hereditaments in the
parish of Dovedale devised by the will of the testator A. P. and the
distribution of the proceeds of such sale, will he more beneficial for
the several persons who now are or who may hereafter hecorae in-
terested therein than a partition of the said hereditaments, and the
Pits and Defts by their counsel requesting a sale, order and decree
that the Defts W. L. and P. be at liberty to sell the messuage, farm
lands, and hereditaments in the said parish devised by the will of the
said testator, and in such lot or lots, manner and way, and subject to
such particulars, conditions and provisions as they may think fit.
Declare that upon such sale the Pits and Deft P., as one of the co-
heirs of the testator, will be the trastees of their respective estates and
interests in the said hereditaments for the said purchaser or purchasers
thereof, within the meaning of the Trustee Act, 1850. Declare that
the interests of the unborn children and issue of the Pit E. B. C. are
the interests of persons who on coming into existence would be trustees
within the meaning of the Trustee Act, 1 850. And the Court doth,
pursuant to the Trustee Act, 1850, herehy appoint the Defts W. L.
and P. to convey the said hereditaments for the estates therein of the
Pit and of the Deft P., as such co-heirs, who are respectively out of
the jurisdiction, and for all such estate and interest as any unborn
children and issue of the Pit E. 0. would on coming into existence be
seised of or entitled to in the said hereditaments. Let the Defts W. L.
and P. receive the purchase-moneys to arise from the sales of the said'
hereditaments, and execute the conveyances thereof accordingly. And
this Court doth hereby appoint the Defts L. and J. T. L. trustees of
the Pits' moiety of the moneys to be produced by the sale of the said
hereditaments, and pf sucih residue as hereinafter mentioned of the said
share of the Deft M. D. in the other moiety of the said moneys. —
Direction to tax, as between solicitor and client, the costs of suit of
the Pits and Defts, and any charges properly incurred by them prepara-
tory thereto, and of the said J. W. T. L. and J. T. L., as trustees of
the Pits' moiety (including the costs of the said J. W. T. L. and P.
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PARTITION. 485
of the sale hereby directed). — Defts L. and P. to retain their own costs
and pay to the Pits and remaining Defts their costs, when taxed, out
of the purchase-moneys to he received by them. Let the Defts L. and
P. pay one moiety of the net residue of the said purchase-moneys to
the said Defts L. and J. T. L., as such trustees, to be held upon trust to
apply the same to some one or more of the purposes mentioned in the
23rd section of the Settled Estates Act, 1856, without any application
to this Court, and in the meantime to invest the same in or upon any
stocks, funds, or securities in or upon which, pursuant to the General
Orders of the Court, cash under the control of the Court ■ may be
invested. Let the said trustees pay the income of the said moiety and
of the investments thereof to the Pit E. B. 0. during his life, and
subject thereto hold the said moiety and the investments and income
thereof for the benefit of the other persons interested under the
limitations in the testator's wiU contained of and concerning that
moiety of the said hereditaments devised by the said will to E. B. C.
for life. — Directions for payment of remaining fifths of purchase-
money. — Liberty to apply. Chubb v. Petipher (V.-O. M.), June 25, 1870.
Sale instead of Paetition.
" In a suit for partition where if this Act had not been passed a decree for
partition might have been made, then if it appears to the Court that by reason of
the nature of the property to which the suit relates, or of the number of the
parties interested therein, or of the absence or disability of some of those parties,
or of any other circumstance, a sale of the property and a distribution of the
proceeds would be more beneficial for the parties interested than a division of the
property between or among them, the Court may, if it thinks fit, on the request
of any of the parties interested, and notwithstanding the default or disability of
any others of them, direct a sale of the property accordingly, and may give all
necessary or proper consequential directions": 31 & 32 Vict. c. 40, s. 3.
" In a suit for partition where if this Act had not been passed a decree for
partition might have been made, then if the party or parties interested individually
or collectively to the extent of one moiety or upwards in the property to which
the suit relates request the Court to direct a sale of the property and a distribution
of the proceeds instead of a division of the property between or among the parties
interested, the Court shall, unless it sees good reason to the contrary, direct a sale
of the property accordingly, and give all necessary or proper consequential direc-
tions": 31 & 32 Vict. c. 40, s. 4.
" In a suit for partition where if this Act had not been passed a decree for
partition might have been made, then if any pairty interested in the property to
which the suit relates requests the Court to direct a sale of the property and a
distribution of the proceeds instead of a division of the property between or among
the parties interested, the Court may if it thinks fit, unless the other parties
interested in the property or some of them undertake to purchase the share of the
party requesting a sale, direct a sale of the property, and give all necessaiy or
proper consequential directions ; and in case of such undertaking being given, the
Court may order a valuation of the share of the party requesting a sale, in such
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486 PARTITION.
manner as the Court thinks fit, and may give all necessary or proper consequential
directions": 31 & 32 Vict. c. 40, s. 5.
The 3rd and 4th sections of the Act are not controlled in their operation
hy the 5th section, which applies to a case not provided for either by the 3rd
or 4th sections, where the Court sees no reason for preferring a sale to a parti-
tion : Brmktmter v. Batdiffe, L. E. 20 Bq. 528. See obs. of M. E.
Any party, whether pit or deft, may apply for a sale under the 5th section ;
and is entitled to ask for a sale, unless somebody is about to buy: S. C.
But a part owner cannot be compelled tinder the 5th section to sell against his
will : Williams v. Games, L. E. 10 Ch. 204.
And if a part owner does apply for a sale under the 5th section, and an offer to
buy the part owner's share is made, the application for sale may be withdrawn :
S. 0.
But the 5th section is not in the nature of a proviso that no sale is to be
directed under the 3rd and 4th sections if any other party interested shall under-
take to buy the share of the parties asking for sale : Brinkwater v. Batdiffe,
L. E. 20 Eq. 528, 531. See obs. of M. R. commenting on Pemberton v. BarTies,
L. R. 6 Ch. 693.
The Court can, under the Act, make a decree for sale instead of partition at
the request of a /erne coverte pit : Eiggs v. Dorkiss, L. R. 13 Bq. 280.
And may make a declaration of the rights of parties, and direct a sale at the
request of infant pits : France v. France, L. R. 13 Eq. 173 ; Davey v. Wietlisbach,
L. R. 15 Bq. 269.
A decree for sale may be made although one of the parties interested is out of
the jurisdiction ; but the decree must be served on the absent party before the
sale is proceeded with : Silver v. Udall, L. R. 9 Bq. 227 ; TeaU v. Watts, L. E.
11 Bq. 213.
Where a person entitled to the legal estate was out of the jurisdiction and had
not been served, and no attempt made to serve him, an order for sale was refused :
Eervey v. Eervey, L. R. 10 Bq. 346.
And where an order for sale had been made in the absence of parties who were
out of the jurisdiction, the Court refused to allow the decree to be acted upon in
th«ir absence, but directed notice to be given to them of the decree by advertise-
ments, with liberty for the pit to apply after advertisement : Peters v. Bacon,
L. R. 8 Bq. 125.
In a suit for sale under the Act the bill ought to have prayed for partition as well
as sale : Teall v. Watts, L. R. 13 Eq. 213 ; EoUand v. EoU, L. R. 13 Bq. 406.
The Court may direct a partition of part and sale of the rest : Boehuck v.
Chadehet, L, R. 8 Eq. 127 ; Order, p. 478.
Where a decree for partition has been made before the Partition Act, the Court
cannot under that Act order a sale : Pry or v. Pry or, L. R. 19 Eq. 595 ; L. R.
10 Ch. 469.
Form of Decree.
An order for sale of real estate under the Partition Act, 1868, cannot be made
at the hearing unless all persons interested in the property are parties to the cause :
Mildmay v. Quieke (per M. R.), L. E. 20 Bq. 537 ; Order, p. 481 ; Brinkwater v.
Batdiffe, L. E. 20 Bq. 528.
And if all persons interested are not parties, then the 9th section of the Act
applies, and a sale can only be ordered " on further consideration " : S. C. See
also Buckingham v. Sellick (V.-C. J.), 22 L. T. (N.S.) 370.
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PAETITION. 487
Where the title of all the parties has been proved at the hearing an immediate
decree for sale has been made without the usual prelimiijary inquiries : Lees v.
OouUon, L. E. 20 Eq. 20. But the usual practice is to prove the title of the
parties in Chambers.
Where the decree has directed the usual inquiries as to the persons interested,
and a sale is dependent upon the result of those inquiries, a certificate ought to be
made before the sale is effected : Powell v. Powell, L. R, 10 Ch. 130.
And where the sale took place before the certificate the purchaser was held
entitled to be discharged : S. 0.
The undertaking to purchase mentioned in the 5th section of the Act cannot
be given by a married woman whose husband does not join in the imdertaking :
Drinkwater v. Eatcliffe, L. R. 20 Bq. 528.
Parties.
" Any person who if this Act had not been passed might have maintained a
suit for partition, may maintain such suit against any one or more of the parties
interested, without serving the other or others (if any) of those parties ; and it
shall not be competent to any deft in the suit to object for want of parties'' :
31 & 32 Vict. c. 40, s. 9 ; see also 38 & 39 Vict. c. 70 ; ante, p. 8.
InQUIEIES at the HEAEINa.
"At the hearing of the cause the Court may direct such inquiries as to the
nature of the property and the persons interested therein, and other matters, as it
thinks necessary or proper, with a view to an order for partition or sale being
made on further consideration": 31 & 32 Vict. c. 40, s. 9. See also Jud. Rules,
Order 33.
Service of Notice op Decree.
" All persons who if this Act had not been passed would have been necessary
parties to the suit, shall be served with notice of the decree or order on the
hearing, and after such notice shall be bound by the proceedings as if they had
been originally parties to the suit, and shall be deemed parties to the suit " : 31 & 32
Vict. c. 40, s. 9. Silver v. UdoB, L. R. 9 Eq. 227 ; Tecdl v. Waffs, L. R. 11 Eq.
213.
Libertt to bid.
" On any sale under this Act the Court may,.if it thinks fit, allow any of the
parties interested in the property to bid at the sale, upon such terms as to non-
payment of deposit, or as to accounting for the purchase-money, or any part
thereof, instead of paying the same, or as to any other matter, as to the Court may
seem reasonable " : 31 & 32 Vict. c. 40, s. 6.
Application op Trustee Act, 1850.
" Sect. 30 of the Trustee Act, 1850, shall extend and apply to cases where in
suits for partition the Court directs a sale instead of a division of the property " :
31 & 32 Vict. c. 40, s. 7.
Independently of this section, wherever the Court has jurisdiction to make a
decree for sale the decree binds in equity the interests of all persons not in
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488 EAETITION.
existence : Barnett v. Moxon, L. R. 20 Bq. 182. See also Oaskell v, Qaskell,
6 Sim. 643 ; Beioley v. Carter, L. B. 4 Ch. 230.
Application of Peoceeds of Sale.
" Sections 23 to 25 (both inclusive) of the Act to facilitate Leases and Sales
of Settled Estates shall extend and apply to money to be received on any sale
effected under the authority of this Act : " 31 & 32 Vict. c. 40, s. 8.
County Court Jurisdiotion.
The County Courts have jurisdiction under the Act where the value of the pro-
perty in question does not exceed £500 : 31 & 32 Vict. c. 40, b. 12.
BOUNDAEIES.
Commission — Delivery of Possession.
LET-'a commission issue directed to certain commissioners to be
therein named to distinguish the several lands and hereditaments
situate, &c., in the possession of the Deft, from the several lands and
hereditaments situate, &c., also in the Deft's possession. Let the said
commissioners set out, distinguish, and ascertain the said several lauds,
&c., hy proper metes and bounds. — Usual directions for production of
deeds and examination of witnesses. — And after the lands shall be so
set out respectively, the Deft is to deliver possession thereof to the Pit,
and he and his heirs are to hold and enjoy the same against the Deft
and his heirs or any'person or persons claiming under him. — Adjourn
further consideration. Winton v. Newland, 1813, B. 1510 ; Abergavenny
V. Thomas, 1739, B. 294; Seton, 590, 591.
Confusion of Boundaries — Beffs Land to he set out — Account of Bents.
Let a commission issue directed, &c., to distinguish and set out, &e.
Let such commissioners set out, distinguish, and asceitain the said
several lands by proper metes and bounds.
And if by reason of confusion of boundaries, alteration of names, or
other circumstances, the said commissioners shall not be able to ascer-
tain the particular lands comprised, &c., they are to set out an equal
quantity of the lands now in the possession of the Deft C. P., or as
near as may be, of equal value with the lands comprised, &c., or so much
thereof as cannot be distinguished as aforesaid [and after the said
lands shall be so set out, the Deft is deliver possession* thereof to the
Pit], and they are to be held and enjoyed by the relators in lieu of the
said lands [which cannot be ascertained]. Let the following accounts
be taken : — 1. An account of the rents and profits of the lands com-
prised, &c., which have accrued or been i-eceived by the Deft 0. P. since
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PARTITION. 489
IHe — day of — [whea the Deft entered into possession], or by any other
person or persons by his order or for bis use. 2. An account of all
timber and other trees (if any) which have been out upon the lands
and hereditaments comprised, (fee. by the order of or for the use of the
said Deft since the — day of ■ — , and of the value thereof. — Usual
directions for production of deeds and examination of witnesses. — Ad-
journ further consideration. Att.-Gen. v. Penruddoch, 1856, A. 1302 ;
Seton, 589 : see also Lord Abergavenny v. Thomas, 1739, B. 294.
* Note. — The clause in brackets is not in the original order, but should have
been inserted.
Suit to ascertain Boundaries.
In a suit to ascertain bound^iries the decree generally directs a comniission to
issue for that purpose. But the question may be tried before the Court itself
with or without a jury, or before a Court of Common Law : Dan. 4th ed. 1033 ;
Godfrey v. LUtdl, 1 Buss. & My. 59, 63 ; 25 & 26 Vict. c. 4, ss. 1, 2.
The decree does not order mutual conveyances as in case of a partition. But
should direct that the deft deliver possession to the pit of the lands set out : Lord
Abergavenny v. Thomas, Seton, 591 ; Norris v. Le Neve, 3 Atk. 82.
Where, through the default of a tenant or copyholder the boundaries are con-
fused, the Court directs so much of the deft's land to be set out as is equal to the
quantity originally granted or leased : Lord Abergavenny v. Thomas^ 1 West, 649 ;
Order, supra; Speer v. Crawter, 2 Mer. 410, 418; Att.-Oen. v. Fullertcm, 2
V. & B. 263.
It is the duty of the tenant (whether for life, or for years, or at will) who has
adjoining land of his own to keep the boundaries clear and distinct : Att.-Gen. v.
Stephens, 6 De G. M. & G. 111.
But to make a deft liable to make good land the boundaries of which cannot
be distinguished, it must be shewn that he is in possession of such land : S. 0.
Where it is owing to no fault of the pit or deft that the boundaries have
become confused, the Court will order the costs of suit to be borne by them
equally, and not in proportion to their respective interests : Norris v. Le Neve^
3 Atk. 82 ; and see Metcalfe v. Beckwith, 2 P. Wms. 376.
DOWER.
Inquiries as to Land — Possession — Account of Bents.
Let the following inquiries be made: — 1. An inquiry what free-
hold lands the said M. died seised of wherein the Pit is dowable.
2. An inquiry what copyhold or customary lands the said M. died
seised of wherein the Pit is entitled to dower, or any other estate by
the custom of the manor wherein the said copyhold or customary lands
or any of them lie. Let the Pit be assigned her dower in such free-
hold lands and tenements, and also her dower or widow's estate in
such copyhold or customary lands and tenements. And Let particular
lands and tenements be assigned and set out for that purpose.
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490 PARTITION.
And after the lands and tenements shall be set out and ascertained,
Let the Deft deliver possession to the Pit of the lands and tenements
that shall be so set out and ascertained for the said dower of the Pit.
And the tenants of tho said lands and tenements are to attorn and pay
their rents to the Pit.
Let an account be taken of the rents and profits of the said freehold
and copyhold or customary lands and tenements whereof the said M.
died seised, accmed since the death of the said M., received by the
Deft or by any other person by his order or for his use. Let one third
part of what shall be coming on the said account of rents and profits of
such freehold lands and tenements be paid to the Pit by the Deft in
respect of her dower out of such lands and tenements. And Let such
part of what shall be coming on the said account of rents and profits
of the said copyhold or customary lands and tenements as the Pit
shall be certified to be entitled to in respect of her dower or other
widow's estate in such copyhold or customary lands and tenements be
paid to the Pit by the Deft. — Deft to pay Pit's costs of suit up to this
time. — Further consideration adjourned. Meggot v. Meggot, 2 Dick.
749 ; 2 Ves. 127 ; Seton, 671.
Like Decree — Account of Bents — Occupation Sent
Inquiries, assignment of dower, and delivery of possession, as in pre-
ceding order. Let an account be taken of the rents and profits of the
estates whereof the said B. became so seised, accrued from the — day
of — (being six years prior to the time of filing the Pit's bill in this
cause) to such time as such lands and tenements sliall be so set out and
assigned, received by the Defts or any of them, or by any other person
or persons by their or any of their order or use. Let an inquiry be
Taade whether any and which of the Defts have or has been in the
occupation of any of the said estates. And if so, Let an annual sum
by way of occupation rent be set thereon ; and Let such Defts be
charged therewith.
Let the Defts respectively, within — days after the date of the
chief clerk's certificate, pay to tbe Pit one-third of the amount of such
rents and profits, which shall be certified to have been received by
them respectively. — No costs on either side. — Liberty to apply. JBam-
ford V. Bamford, 1845, B. 2302 ; 5 Hare, 203 ; Seton, 672.
DOWEE.
The Court of Chancery either directs the inquiry as to right of dower and the
assigument of it to be made in chambers, or orders a commission to issue.
The order for commission is nearly in the form of an order for a commission of
partition : see p. 475.
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PARTITION. 491
It forms part of the decree that upon the assignment of dower possession of the
land he delivered to the doweress : Goodenough v. Ooodenough, 2 Dick. 795.
The widow is entitled to an account of the arrears of her dower. And her right
to the rents accrued from the death of her hushand is not limited to the time of
filing the hill : Curtis v. Curtis, 2 Brown's Sep. 620 ; Mundy v. Mundy, 2 Ves.
122, 128 ; Oliver v. Richardson, 9 Ves. 222.
But the widow is not entitled to interest upon arrears of dower : Lindsay v.
Oibbon, cited 3 Brown's Eep. 495.
Upon a hill to assign dower, Tisnallj no costs are given to either side : Bwmford
V. Bamford, 5 Hare, 203, 205; Lucas v. Caloraft, 1 Bro. C. 0. 134.
But where the right to dower has been disputed, and upon grounds which have
failed, costs have been given : Fry v. Nolle, 20 Beav. 598 ; aEBrmed 7 De G. M.
& G. 687 ; Stormont v. Wickens, 14 W. R. 192.
" No widow shall be entitled to dower out of any land which shall have been
absolutely disposed of by her hushand in his lifetime or by his will " : Dower Act
(3 & 4 Will. 4. c. 105), s. 4.
" Where a husband shall devise any land out of which his widow would be
entitled to dower if the same were not so devised, or any estate or interest therein,
to or for the benefit of his widow, such widow shall not be entitled to dower out
of or in any land of her said husband unless a contrary intention shall be declared
by his will": s. 9.
For cases under these sections : see Bending v. Bending, 3 K. & J. 257 ; Bow-
land V. CutlAertsm, L. E. 8 Bq. 466 ; Lacey v. Eill, L. E, 19 Eq. 346.
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( 492 )
CHAPTER XXIX.
SOLICITOES.
Solicitor struck off the Eolls.
Solicitor' B Application, •
Upon motion, &c., by counsel for A. (one, &c.), and upon reading an
affidavit of the said A. filed, &c. [affidavit should state thai there is no
proceeding or application against the solicitor in the Court as such, and that
he does not apprehend that any will he made]. Let the said A. be struck
off the rolls of solicitors of this Court. Seton, 865.
Solicitor struck off the Bolls — Misconduct — Order Nisi.
Upon motion, &c., tod upon reading, &c., Let — be struck off the
. roll of solicitors of this Court, unless he shall on the — day of — shew
unto this Court good cause to the contrary. See Wheatley v. Bastow,
Be Collins, 7 De G. M. & G. 558.
Order Absolute.
Upon motion, &c., by counsel for — , and upon reading an order
dated, &c. [the order nisi], and an affidavit of — of service of the said
order on B. [the solicitor], and no cause having this day been shewn
to the contrary, Let the said B. be struck off the roll of solicitors of
this Court.
Solicitor suspended.
Let W. C. B. in the petition named, and who was admitted on the
— day of — , be suspended from practising as a solicitor of this Court
until after the expiration of — Term, 18 — , with liberty for the said
W. C. B. to make such application to the judge in the meantime as he
shall be advised. Let a memorandum of this order be entered on the
roll of solicitors of this Court. Be Brutton (M. E.), June 20, 1871.
Solicitoes struck off the Eolls.
Where a solicitor is guilty of misconduct he may be struck off the roll of soli-
citors by order of Court: 2 Atk. 173 ; Be Chandler, 22 Beav. 253 ; 2 Jur. (N.S.)
366 ; Be Oheslyn Hall, 2 Jur. (N.S.) 633 ; Thorndihe v. Hunt, 5 Jur. (N.S.)
879.
And he may be struck of the roll for fraudulently abusing the confidence of his
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SOLICITORS. 493
client, notwithstanding that the client may have been willing to compromise :
Re Martin, 6 Beav. 337.
Where a solicitor who without authority instructed counsel to appear for
parties interested in money in Court, and to consent to its payment out, he was
ordered to he struck off the rolls : Wheadey v. Bastow, Re Collins, 7 De G. M.
& G. 558 ; 1 Jnr. (N.S.) 1125 ; Order, p. 492.
As to misconduct imputed to solicitor by afBdavits of the client being sworn
before him (the solicitor) or his clerk or his agent : See Re Eogan, 3 Atk. 812 ;
Read v. Coo/per, 5 Taunt. 89 ; Williams t. Eockin, 8 Taunt. 435 ; Foster v.
Harvey, 2 New Eep. 443 ; 3 New Kep. 98 ; Re Oregg, L. R. 9 Eq. 137.
As to payment by the solicitor of costs of the proceedings in a suit where he
had been guilty of misconduct : See Cockle v. Whiting, 1 Russ. & My. 43 ; Bun-
gey V. Angove, 2 Ves. Jun. 304 ; Fielden v. Buenos Ayres Co., 18 W. R. 729 ; 19
W. R. 361 ; Bromage v. Davies, 4 Jur. (N.S.) 683 ; Re Oregg, supra.
Where application is intended to be made to any Court for an order or rule to
strike the name of any attorney or solicitor (not being an attorney or solicitor
making the application) off the roll of attorneys or solicitors of such Court, or for
an order or rule to compel him to answer the matters of an afBdavit, notice in
writing shall be given to the Registrar (" The Registrar of Solicitors," see Judi-
cature Act, 1875, sect. 14) of such intended application fourteen clear days at
the least before such application shall be made : The Attorneys and Solicitors
Act, 1874 (37 & 38 Vict. c. 68), s. 7.
" Copies of all afBdavits intended to be used in support of such application
shall be delivered to the Registrar with the notice" : sect. 8.
" The Court shall not entertain any such application, except upon production
of an afBdavit proving that the notice required by this Act has been duly given,
and that copies of all such afBdavits have been duly delivered to the Registrar " :
sect. 9.
" The Registrar may appear by counsel upon the hearing of any such appli-
cation, and upon any other proceedings arising out of or in reference to the appli-
cation, and may apply to the Court to make absolute any rule nisi which may
have been granted by the Court in the matter of such application, or make an
order that the name of the attorney or solicitor be struck off the roll of attorneys
or solicitors of the said Court, or, as the case may be, to order the attorney or
solicitor to answer the ^ matters of the afBdavit, or such other order as to the
Court may seem fit " : sect. 10.
" And it shall be lawful for the Court to order the costs, charges, and expenses
of the Registrar of and relating to any of the matters aforesaid, to be paid by
the attorney or solicitor against whom any such application is made, or was intended
to be made, or by the person by or on whose behalf the application is made or
was intended to be made, or partly by the one and partly by the other " : Ibid.
The Registrar may draw up rules and orders not drawn up by the applicants :
see sect. 11.
Negligence of Solicitor.
There is no jurisdiction in the Court of Chancery to compel a solicitor to make
good losses sustained by the client through ordinary negligence in the investi-
gation of a title, although under special circumstances and in cases of fraud there
may be such jurisdiction : Smith v. Pocoeke, 2 Drew. 197 ; Chapman v. Chapman,
L. R. 9 Eq. 276 ; Craig v. Wilson, 8 Beav. 427 ; Sixon v. Williamson, 4 De
G. & J. 508 ; British Mutual Investment Compvny v. Cobbold, L. R. 19 Eq. 627.
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'494 SOLICITOKS.
Change of Solicitor.
Upon motion, &o. [or, upon petition of, &c.J, for the Pit [or. Deft]
Let the Pit [or. Deft] be at liberty to change his solicitor [or, agent]
in this cause by appointing — as such solicitor instead of — , the
present solicitor of the said Pit [or. Deft] (or, — agent for the Pit [or,
Deft] instead of — ).
" A party suing or defending by a solicitor shall not be at liberty to change his
solicitor in any cause or matter without an order of the Court for that purpose,
which may be obtained by motion or petition as of course; and until such order
is obtained and served, and notice thereof given to the clerk of records and writs,
the former solicitor shall be considered the solicitor of the party " : Cons. Ord. 3,
rules.
And a solicitor desiring to change his agent must obtain an order, which is
also as of course : Daniell, 5tb ed. 1723 ; Braith. Pr. 564.
Order of course for the change of solicitors or agents will be discharged if ob-
tained upon a misstatement or suppression of material facts : Richxirds v. Scar-
borough Market Co. 17 Beav. 83 ; Jenkins v. Bryomi, 3 Drew. 70.
The order to change operates as a discharge by the client : Webster v. Le Hunt,
9 W. R. 804 ; Ward v. Svnft, 6 Hare, 310, cited in Morgan, 4th ed. 386.
The client may employ a new solicitor without obtaining an order to change
where petition is presented for payment out of Court of fund standing to separate
account, or where the solicitor dies pending the suit : WaddUove v. Taylor, 17
L. J. (Ch.) 384 ; WhxMey v. Whattey, 22 L. J. (Ch.) 632.
If the solicitor of a party dies, proceedings taken by the new solicitor are
regular without an order to change : WhaUey v. WhaUey, 17 Jur. 254.
But an order has been said to be necessary where the solicitor enters into part-
nership subsequent to his appointment as solicitor : MviUebury v. Haywood, 8
Jur. 1085,
The retirement from business of one of two solicitors in partnership operates as
a discharge of the client, who is thereupon entitled to require the delivery to the
new solicitor of the papers necessary to prosecute the cause upon the usual un-
dertaking for saving the lien of the discharged solicitor : Qriffiths v. Griffiths, 2
Hare, 587 ; RavHinson v. Moss, 7 Jur. (N.S.) 1053.
If the solicitor of a party dies, and the client neglects to appoint a new one, he
may be served with a suhpaina to name a new solicitor : Gibson v. Ingo, 2 Ph.
402.
Where there has been a change of solicitors within the meaning of the Cons.
Ord. 3, rule 3, without an order, service of notice of proceedings in the suit upon
the old solicitors is regular : Wright v. King, 9 Beav. 161 ; Davidson v. Leslie,
Ibid. 104.
Where a solicitor applied to his client for funds to caiTy on a suit, and upon
the client not furnishing any, declined to continue the conduct of the litigation,
and the client appointed a fresh solicitor : held that this was a discharge by the
solicitor : Robins v. Ooddingham, L. R. 13 Eq. 440;
And that the solicitor might be called upon to deliver to the new solicitors the
papers relating to the matters in question on an undertaking to hold them without
prejudice to lien, to return them within a limited time, and to allow the former
solicitor access to them : S. 0.
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SOLICITOES. 495
Delivery of Briefs and Papers hy former to new Solicitor to prosecute Suit
— Lien of former Solicitor — Undertaking to return.
Let Messrs. G. & C. [former solicitors] respectively within seven
days from the date of this order deliver up on oath to H., the present
solicitor of the petitioner, all brief?, office copies of answers, cases for
the opinion of counsel, opinions of counsel, and all other papers and,
writings whatsoever in or connected with this cause in the possession
or custody of the said G. & C. or either of them as the solicitors of the
petitioner F. which upon inspection the said H. may deem necessary
on behalf of the petitioner on the hearing of this cause, the said H.
undertaking to receive and hold all such papers and writings without
prejudice to any right of lien thereon to which the said G. & C. or
either of them are or is or may be entitled, and to return the same
undefaced to the said G. & C. within fourteen days after the hearing
of this cause. Chriffiths T.Grifp,ths, 2 Hare, 587.
Similar Order for the purpose of an Appeal — Lien— Undertaking,
Let E. M. within three days after service of this order deliver over
to E. C. B., the present solicitor of the Pits and Defts, all the deeds,
books, documents, papers, and writings in these causes now in his
• custody, possession, or power, for the purposes of the appeal from the
decree dated, &c., the said E. C. B. heieby undertaking to hold the
same subject to such lien as the said B. M. shall be lawfully entitled
to thereon, and to return all the said deeds, books, documents, papers,
and writings within ten days after the disposal of such appeal.
Webster v. Le Eunt, 9 W. E. 804.
Delivery of Deeds hy Solicitor to Client — Payment into- Court — Lien.
Let G. L. and T. W., or one of them, on or before the — day of —
pay into Court to the credit of this matter the sum of £160, to- an account
to be intituled the account of G. L., T. W., and F. H. J., without pre-
judice to the taxation of the bill of fees and disbursements of the said
F. H. J., directed by the order dated, &o. Let F. H. J. within two days
after notice to him of such payment into Court, deliver up to the said
J. L. and T. W., or one of them, or to their solicitors, all deeds, books,
papers, and writings in his custody or power belonging to the said
G. L. and T. W. in manner directed by the said order dated, &c., the
said G. L. and T. W. by their counsel undertaking to produce to
the taxing master, at all proper times and seasons, all or any of such
deeds, books, papers, and writings as they shall be required. But this
order is without prejudice to the lien (if siny) of the said F. H. J. upon
such deeds, &c., for costs alleged to be due to him from the estate of
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496 SOLIiDITOKS.
C. H. L. deceaspd. No order as to the costs of F. H. J. of application.
Be Jewitt, 34 Beav. 22.
Delivery hy Solicitor of Order to the Segistra/r for completion — Iden^^
Costs.
Let G. B. within two days after service of this order leave the
order dated, &c., with the proper officer of this Court in order that
the same may be entered. Let the said order when entered be
delivered back to the said G. B. And W. H. D., the solicitor for the
Pit J. C, consenting, Let him pay to G. B. 20«. for his attendance at
the registrar's office for the purpose of entering the said order and for
the fees of such entry. But this order is to be without prejudice to
any lien the said G. B. has [upon the said order]. And at the request
of G. B. by his counsel, and by the consent of the Pit, Declare that
G. B. is entitled to a lien upon any cash or funds which may here-
after be standing to the credit of this cause belonging to the Pit for
the bill of costs of the said G. B. in this cause. Clifford v. Turrill,
2DeG. &Sm. 1.
Ddivery of Office Copies, dec, to new Solicitor — In default Money to he
refunded.
Let L. [former solicitor] deliver to 0. M. and J. M. [new solicitors]
the several office copies, copies and papers mentioned in the schedule
to the Master's report dat6d, &o., or such of them as are in his posses-
sion or power. And in case the said L. shall not deliver all the office
copies, copies and papers mentioned in the said schedule. Let the
said L., on or before the — day of ; — , refund to the said 0. M. and
J. M., or one of them, such sum or sums of money as have been charged
by him for such of the office copies and papers as are mentioned in the
said schedule, and which he shall not so deliver. Costs of application
to be paid by paid by L. Bromhead v. Hunt, 1828, A. 92; Seton,
853.
Lien of Solicitor on Deeds.
The solicitor's lien upon papers in his possession is not limited to the occasion
on which they were delivered, without special agreement : Be Stirling, 16 Yes.
258 ; lie Pemberton, 18 Ves. 282.
But although the solicitor's lien applies to all his bills of costs, and he has a
right to retain the client's papers, the lien cannot be actively enforced : Bozon v.
BoUand, 4 My. & Or. 354 ; Heslop v. Metcalfe, 3 My. & Or. 183.
Where the production of a document is required by any party to a suit for the
purpose of proving his case it cannot be resisted on the ground of the solicitor's
lien : Brassington v. Brassington, 1 S. & S. 455 ; Hope v. LiddeU, 7 De Gr.
M. & G. 331 ; 1 Jur. (N.S.) 665.
Nor is the lien of the solicitor allowed to prejudice the rights of third parties
claiming adversely to the client : Daniell, 5th ed. 1715, and cases there cited.
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SOLICITORS. 497
The Court will order ihe solicitor to deliver to the client his papers upon pay-
ment into Court of a sum sufBoient to cover the amount for which the solicitor
has a lien : Mills v. Finlay, 1 Beav. 560 ; Re Beoan and Whiting, 33 Beav. 439 ;
but see Richards v. Platel, 1 Cr. & P. 79, 82.
And pending taxation the Court has ordered delivery by the solicitor to the
client of his papers, on the client's undertaking to produce them and giving
security for the amount claimed : Re Jewitt, 34 Beav. 22 ; Order, p. 495.
The Court will not allow the solicitor's lien upon a deed to occasion loss to the
property comprised in it, as in the case of a policy of insurance : Richards v.
Platd, 1 Cr. & P. 79.
Nor to impede proceedings in a suit in which an order has been made to
change the former solicitor, who had a lien : Webster v. ie Hunt, 9 W. R. 804 ;
Order, p. 495 ; see also Merrywether v. Mellish, 13 Ves. 161 ; Cane v. Martin,
2 Beav. 584.
The solicitor, notwithstanding his lien, is bound to produce <the papers of his
client for the prosecution of the suit, and in the case of the client having become
bankrupt, for the benefit of his assignees : Ross v. Laughton, 1 V. & B. 349,
per Lord Eldon.
But where, upon the death of a deft, an executor, a fresh solicitor was employed
by the deft's representative, an order for the production of documents by the
former solicitor was refused : Lord v. Wormleighton, Jac. 580.
The lien of a solicitor will not be allowed to prevent an order which has been
passed being completed by entry, and he will be required to produce it : Clifford
V. Turrill, 2 De G. & Sm. 1 ; Order, p. 496.
Where the solicitor had been changed, the former solicitor of the pit, who had
become bankrupt, was ordered to produce documents in his possession necessary
to the assignee for drawing up orders in the suit notwithstanding the lien : Siin-
monds v. Great Eastern By. Co., L. R. 3 Ch. 797 ; see also Bennett v. Baxter,
10 Sim. 417.
Where a solicitor had declined to proceed with a suit unless furnished with
funds, and the funds not being furnished, the client changed his solicitor, this was
held as a discharge by the former solicitor, and that he might be called upon to
deliver to the new solicitor the papers, &c., upon the usual undertaking : Robins
V. Goldingham, L. K. 13 Eq. 440.
Solicitob's Lien on Fund in Court.
The lien of the solicitor upon a fund in Court recovered in a suit is confined to
the costs of that suit : Bozon v. Bolland, 4 My. & Cr. 354 ; Lance v. Church,
4 Madd. 391 ; Hall v. Laver, 1 Hare, 571.
The solicitor employed by a trustee has no lien upon a trust fund not admi-
nistered in Court for his costs, although the trustee paying those costs may'
himself retain them out of the fund : Worrall v. Harford, 8 Ves. 418 ; Hall v.
Laver, 1 Hare, 571.
And with respect to funds in Court, the trustee, although entitled to claim his
costs, charges, and expenses as trustee, has no lien upon the trust fund in respect
of his costs, not being costs of suit : Hall v. Laver, supra.
Nor does the employment of a solicitor by some of several cestuis que trust
give the solicitor a lien upon the shares of the other cestuis que trust: S. C.
Where a suit was instituted by the next friend of an infant pit the solicitor was
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498 SOLICITORS.
held entitled to a lien upon the fund in Court for costs of suit : Bonser v. Brad-
shaw, 7 Jur. (N.S.) 231 ; 9 W. E. 229 ; 10 W. E. 481.
But a charging order under the Act 23 & 24 Vict. c. 127, s. 28, for costs of
such a suit was refused upon the ground that the Act was meant to apply to
parties who were sui juris.
Where the solicitors of a party had heen changed, and the fund in Court was
insufBcient for the payment of both sets of costs, the solicitor who had last
conducted the suit was held entitled to the prior lien : Cormack y. Beasley, 3 De
G. & J. 157.
The lien of the solicitor upon a fund in Court may be actively enforced : Cowell
V. Simpson, 16 Ves. 275.
If any security has been taken by a solicitor from his client in any way incon-,
sistent with the nature of the contract created by the hen, the lien, whether upon
papers or a fund, seems to be altogether destroyed : DanieU, 5th ed. 1720, citing
Oowell V. Simpson, 16 Ves. 275, 282 ; Watson v. Lyon, 7 De G. M. & G. 288.
The lien of a solicitor for his costs on a fund recovered by his exertions is not,
affected by an assignment of the fund by the client, nor by a stop order obtained
by the assignee : Haynes v. Cooper, 33 Beav. 431 ; 10 Jur. (N.S.) 343.
Nor does a judge's order, obtained adversely at common law, affect the soli-
citor's lien upon the fund for his costs : Sympson v. Prothero, 3 Jur. (N.S.) 711 ;
5 W. R. 814.
A solicitor is entitled to a Hen on costs ordered to be paid to his client by
another party : Ex parte OMand, L. E. 2 Ch. 808. And the right of set-off for
debt to such party does not prejudice the solicitor's lien : S. C. ; see also Se
Banh of Hindustan, L. E. 3 Ch. 125.
' But the London agent of the solicitor is not entitled to a lien on the docu-
ments of a client for the amount of his charges if nothing is due to the country
solicitor : Waller v. Holmes, 1 J. & H. 239 ; Peatfield v. Barlow, L. E. 8 Eq.
61 ; Cockayne v. Harrison, L. R. 15 Eq. 298.
The solicitor's lien for costs upon a fund in Court is for taxed costs, unless the
bill has been delivered at such a time that the right to tax was lost before the
fund was paid into Court : De Bay v. Qriffln, L. E. 10 Ch. 291.
Interest on Taxed Costs.
" Whenever a decree or order is made by the Court of Chancery, in which the
payment of any costs previously taxed, either in the suit or proceeding in which
such decree or order is made, or in any other suit or proceeding, is ordered, and
whether the certificate of such previous taxation have been made before the pass-
ing of this Act or be made thereafter, it shall be lawful for the Court or judge
making such decree or order to order and direct the amount of such costs, as
taxed, including the costs of taxation as ascertained by the said certificate, to be
paid with interest thereon at the rate of £4 per cent, per annum from the date of
the certificate, the amount of such interest to be verified by affidavit, and to be
payable and recoverable out of the same fund or in the same manner as the
amount of such costs ": 23 & 24 Vict. c. 127, s. 27.
Where the payment of the costs ordered to be taxed and paid has been unavoid-
ably delayed, the Court has made an order for payment of the interest at £4 per cent,
from the taxing master's certificate to the date of presentation of the petition :
Carter v. Garter (V.-C. W.), 2 New Eep. 512 ; Fox v. Charlton, 6 New Rep. 352.
And in directing payment of a mortgagee's principal, interest, and costs, in-
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SOLICITORS. 499
terest has been ordered to be paid on the costs from the date of the certificate :
Whitfield V. Roberts, 9 W. R. 844.
The Act only applies to solicitors, and a party to a suit cannot claim under it
interest upon his costs : Jenner v. Morris, 11 W. R. 943.
CtoSTS MADE A CHARGE,
Fund in Court.
Declare that W. A. O. and J. D. B., as the solicitors employed by
the Pit T. W. in prosecuting his claim in this suit, is entitled to a
charge upon the £ — Bank Annuities, and £ — cash on the credit, &c.
(by the order dated, &c., direct-ed to be paid to the said Pit) for the
amount of their costs, charges, and expenses, in reference to such suit,
Let it be referred to the taxing master to tax the said costs, charges,
and expenses, including therein the costs of this application, and con-
sequent thereon. — Directions for sale of bank annuities, and payment
of the proceeds and of cash towards liquidation of the costs. Be Oliver
(V.-C. B.), March 29, 1870.
Suit hy Cestui que Trust against Trustee — Solicitor's Costs made a Charge
upon Shares of Pit and Deft — Amount charged to he raised hy Sale.
Declare that the petitioners are entitled to a charge upon the
shares and interests of each of them the Pit H. 0. A. and the
Deft B. T. of and in the hereditaments and premises at — in the
petition mentioned, or any other property recovered by or preserved
for them respectively in this suit, for the taxed costs, charges, and ex-
penses, when taxed under the directions hereinafter contained, of the
petitioners of and in reference to such suit as the solicitors of the Pit
and Deft respectively. Let it be referred to the taxing master to tax
such costs, charges, and expenses (including therein their costs as
between solicitor and client of and relating to this application). Let
the amount of such taxed costs be raised by a sale, with the appro-
bation of the judge, of her share and interest in the said hereditaments
and premises, or other such property as aforesaid, and be paid to the
petitioners (naming them). Let the amount of such taxed costs, and
costs, charges, and expenses found due to the petitioners as the solicitors
of the Deft E. T., be raised by a sale, with the approbation of the judge,
of his shares and interest in the said hereditaments and premises or
other such property as aforesaid, and be paid to the petitioners. — Ee-
ceiver to be continued. — Liberty to apply. Twynam v. Porter, L. B.
11 Eq. 181, 188.
Note: — This order is in the corrected form; not right in report.
See L. P. 11 Eq. 188.
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500 SOLICITORS.
Foreclosure Suit — Defts' Costs made a Charge — Directions for Payment.
Declare that the petitioners, as solicitors of the Deft W. E. D., are
entitled to a charge upon all the estate and interest of the said Deft
W. R. D. or his assignees in bankruptcy, in the mortgaged premises in the
decree mentioned, and the rents and profits thereof, for the amount of
their costs, charges, and expenses, when taxed under the direction
hereinafter contained, of or in reference to this suit. Let it be re-
ferred to the taxing master to tax such costs, charges, and expenses.
Let the estate and interest of the Deft M. S. T., as the assignee in
bankruptcy of the Deft W. R. D., in the said mortgaged premises, be
sold, with the approbation of the judge. Let the moneys to arise from
sale be paid into Court to the credit of this cause S. v. L., " Proceeds
of sale of Deft D.'s equity of redemption,'' to the intent that the same
may be applied in payment to the petitioners of the said costs, charges,
and expenses when taxed and settled. Remainder of moneys to be paid
to Deft M. S. T., as assignee of Deft W. E. D. Liberty for petitioners
and M. S. T. to apply at Chambers for payment out of purchase-
money, and generally. Scholefield v. Lockwood, L. E. 7 Eq. 83.
Suit en behalf of Infant — Proceedings adopted — Costs charged to he raised
hy Sale or Mortgage.
Declare that J. B. J. in the petition named was entitled, and that
the petitioner as his legal personal representative is entitled, to a
charge upon the property comprised in the indenture dated, &c., for
the amount of the costs, charges, and expenses of the Pit, when taxed
under the direction hereinafter contained, of or in reference to this
suit. Let it be referred to the taxing master to tax such costs, charges,
and expenses, and also the costs as between solicitor and client of the
petitioners and respondents of this application. Let a sufficient sum
to pay what shall be certified due, &c., be raised by a sale or mortgage
of the property, or of a competent part thereof, with the approbation
of ±he judge. And in case the same he raised by mortgage, Let the
mortgage be settled by the judge, and be executed by all necessary
parties, as the judge shall direct; and in that case Let the respon-
dents W. J. and W. G. B. keep down the interest of such mortgage ;
and Let the money to arise by the said sale or mortgage be applied in
payment of the said costs, and be in the meantime paid into Court to
the credit, &o. ; and upon the execution of the said mortgage (to he
certified, &o.) Let the said costs be paid as follows, &c. And if the
money be raised by sale, parties to have liberty to apply as they may
be advised. Baile v. Baile, L. R. 13 Eq. 497.
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SOLICITORS. 501
Married Woman's separate Estate — Costs of Defence to Suit charged on her
Declare that the Deft D. K. is entitled to a charge upon the annuity
of £300 in favour of E. L., the wife of W. B. L., secured hy the inden-
ture of settlement dated, &o., for the amount of the costs taxed under
the decree dated the — day of — , of the said E. L. in the suit of
L. V. D. and others, and for his further costs, charges, and expenses,
as solicitor for the said B. L., of and in reference to the said suit of
L. V. D., beyond the party and party costs, when taxed as hereinafter
directed. Let it be referred^ &g., to tax the said further costs, charges,
and expenses of the said D. K., as such solicitor of the Deft E. L. in
the said suit, beyond the costs of the said Deft taxed under the decree
dated, &c., as between party and party. Let the said D. K. give
credit for all sums of money received by him for or on account of the
said costs, charges, and expenses, and be at liberty to charge all sums
of money paid by him in respect of the said costs, charges, and ex-
penses. Taxing master to certify balance. Let it be referred, &c., to
tax the said D. K. and all parties appearing on his application, made
on the — day of — , their costs of his said application, and consequent
thereon, as between solicitor and client. Liberty for the said D. K.
to apply at Chambers as to enforcing the said charge. Liberty for the
said D. K., and the said parties appearing on his said petition, to apply
as to payment of the said costs, charges, and expenses when taxed.
Be'Keane, L. E. 12 Eq. 115.
Administration Suit — Charge of Solicitor irrespective of Ms Client's Interest.
Declare that the petitioner J. H. K., solicitor to the Pits in the first
and third causes, and to J. B., Deft in third cause, has a lien upon the
costs of the parties for whom, on the — day of — , he acted as solicitor,
and by the order dated, &c., directed to be paid by the Defts J. E. and
E. D. out of the assets of J. B., the testator in these causes named.
Let the said J. E. and E. D. pay to the petitioner J. H. K. the said
costs when taxed. Let the costs of the respondents be included
in the costs directed to be taxed by the said order, and be paid out of
the assets of the said testator. Bailey v. Birchall, 2 H. & M. 371.
Costs declared a Charge — Payment out of a Fund in Court- -Cheque drawn.
Declare that the petitioner J. G., as the solicitor employed by John
W. in the petition named, in prosecuting his claim in these causes is
entitled to a charge upon the sum of £ — (the sum apportioned in pur-
suance of the order dated, &c., to the said J. W.) in respect of the
claim of the petitioner for the amount of his costs, charges, and expenses
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502 SOLICITORS.
of or in reference to the prosecution of such claim in these causes.
Let it be referred to the taxing master to tax the petitioner his costs,
charges, and expenses of the prosecution of the claim of the said J. W.
in these causes, and his costs of this application and of the said order
dated the — day of — . Let the said order dated, &c., be discharged,
and let the said costs, when taxed, be paid to the petitioner J. G. out
of the said sum of £ — , for which a cheque has been drawn by the
Aocountant-General [Paymaster-General] in favour of J. W. named in
the said order dated, &c., so far as such sum shall extend for payment
of the same. Let the residue (if any) of the said £ — , after the pay-
ments aforesaid, be paid to the said J. W., pursuant to the said order
dated, &o. Gerrard v. Dawes (V.-C. S.), Dec. 3, 1869.
Costs made a Charge.
" In every case in which an attorney or solicitor shall be employed to prosecute
or defend any suit, matter, or proceeding in any Court of Justice, it shall he
lawful for the Court or judge before whom any such suit, matter, or proceeding
lias been heard or shall be depending, to declare such attorney or solicitor enti^
tied to a charge upon the property recovered or presei-ved, and upon such declara-
tion being made, such attorney or solicitor shall have a charge upon and against
and a right to payment out of the property, of whatever nature, tenure, or kind
the same may be, which shall have been recovered or preserved through the in-
strumentality of any such attorney or solicitor, for the taxed costs, charges, and
expenses of or in reference to such suit, matter, or proceeding ": 23 & 24 Vict,
c. 127, s. 28.
" And it shall be lawful for such Court or judge to make such order or orders
for taxation of and for raising and payment of such costs, charges, and expenses
out of the said property as to such Court or judge shall appear just and proper;
and all conveyances and acts done to defeat, or which shall operate to defeat,
such charge or right, shall, unless made to a bona fide purchaser for value with-
out notice, be absolutely void and of no effect as against such charge or right ":
Ibid.
But no such order shall be made by any such Court or judge in any case in
which the right to recover payment of such costs, charges, and expenses is barred
by any Statute of Limitations : Ibid.
In an administration suit a solicitor was held entitled under this Act to a charge
upon property recovered or preserved for the costs of the litigation, irrespective of
his client's interest in the property, and although it turned out that the client
never had any interest in it : Bailey v. Bircliall, 2 H. & M. 371 ; 11 Jur. (N.S.)
57 ; Order, p 501.
But as a general rule the charge for costs to which the solicitor is entitled
extends to the property of his client only : Berrie v. Eowitt, L. B. 9 Eq. 1. See
also Lewis v. Buncombe, 20 Beav. 398 ; Meld v. Moore, 19 Beav. 176 ; 7 De
G. M. & a. 691.
The costs may be made a charge notwithstanding that a decree for administra-
tion of the client's estate may have been made, and notwithstanding the client's
d'eath, and may be made against real estate : Wilson v. Bound, 4 Giflf. 416- 10
Jur (N.S.) 34.
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SOLICITORS. 503
And at common law the solicitor has been declared entitled to a charge upon
land recovered in ejectment for his costs of the litigation : Ex parte Seaman, 10
Jur. (:*].S.) 593.
The town agent of a country solicitor has been declared entitled to a charge on
property recovered by him in certain suits for an unascertained balance due to
him by the country solicitor: Tardrew v. Howell, 3 Giff. 381; 7 Jur. (N.S.)
1120.
Where in a foreclosure suit the right of a deft to a second mortgage on the
property had been established, the solicitor was held entitled to a declaration of
charge under the Act : See Scholefeld v. Lockwood, L. R. 7 Eq. 83 ; Order, p. 500.
So, too, in a suit by a cestui que trust against his trustee praying for an
account and reconveyance, where a receiver had been appointed adversely to the
deft, and the suit was subsequently compromised by the pit without the know-
ledge of her solicitor, he was held entitled to a charge for his costs : Tvjynam v.
Pwter, L. R. 11 Eq. 181 ; Order, p. 499.
The Court has refused' to make an order under the Act declaring costs a
charge upon an infant's property, upon the ground that the Act only applied to
parties who were sui juris : Bowyer v. Bradshaw, 7 Jur. (N.S.) 231 ; 9 W. R.
229 ; aSBrmed 10 W. R. 481.
But where the infant attains twenty-one the Court has made an order
declaring the charge upon the property recovered for the amount of unpaid costs,
and a sale for the purpose of paying such costs : Bowyer v. Bradshaw, 4 Giff.
260; 9 Jiur. (N.S.) 1048.
And where upon attaining twenty-one the infant does not repudiate the
past proceedit^s, and the property has been " recovered " or " preserved " within
the meaning of the Act, the Court will establish the charge : BaUe v. Baile,
L, R. 13 Eq. 497 ; Order, p. 500.
The costs of a married woman incurred by her in defence to a suit by her
husband to set aside a settlement, whereby funds were assigned to trustees to
secure an annuity to her separate use, have been charged under the Act upon her
annuity : Be Keane, L. R. 12 Eq. 115.
The right to an order under the Act is not personal to the solicitor, but may be
extended to his personal representative : Baile v. Baile, L. R. 13 Eq. 497.
The Court has under its general jurisdiction declared that the costs of a parti-
tion suit and of a suit to obtain a declaration of lien were costs for which the
soUcitor had a lien on the fund in Court : Pritchard v. Boherts, L. B. 17 Eq. 222 ;
see also Sympson v. Prothero, 3 Jur. (N.S.) 711.
And has declared a solicitor entitled to a charge for his coste on property, the
subject of a successful suit conducted by him against an incumbrancer, although
the incumbrance was valueless : Re Fiddey, L. R. 7 Ch. 773.
Where in an administration suit the proceedings had not been prosecuted
beyond taking the usual administration accounts, a petition by the solicitor for
the pit praying that his costs might be charged under the Act on the pit's interest
in the estate was dismissed : Pemherton v. Easton, L. R. 16 Bq. 490.
A suit which only relates to an easement is not a suit in which it can be said
that property is recovered or preserved, even though a mandatory injunction for
pulling down buildings is refused : Foxon v. Qascoigne, L. R. 9 Ch. 654.
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504 SOLIGITOES.
Taxation of Solicitor's Bill.
(Attorneys and Solicitors Act, 6 & 7 Vict. c. 73.)
Application of the Party cha/rgecihle — Bill delivered within One Month —
Order of Course — Sect: 37.
Upon the petition of B., &c„ preferred, &c., it was alleged that the
petitioner employed the above-named H. as his solicitor in a certain
suit in this Court, in which C. and others are Pits and the petitioner
and others are Defts, and in other matters ; that the said solicitor on
or about the — day of — [within one calendar month'] delivered nnto the
petitioner his bill [or, — bills] of fees and disbursements, which, as the
petitioner is advised, contains [or, contain] many unreasonable and
extravagant charges [or, employed the said A. in certain matters of
business ; that the said solicitor on or about the — day of — delivered
unto the petitioner his bill of fees and disbursements, which, as the
petitioner is advised, contains many unreasonable and extravagant
charges, and the same does not contaiti any item for business done in
any of the Courts of Law or Equity]. That the petitioner submits to
pay what shall appear to be due to the said solicitor on the taxation of
his said bill [or, bills) ; it was therefore prayed, and it is accordingly
ordered, that it be referred to the taxing master to tax and settle the
said bill [or, bills], and that the petitioner and alfo the said solicitor do
produce before the said master upon oath, as he shall direct, all books,
papers, and writings in their custody or power respectively relating
to the matters hereby referred or to any of them ; and that they be
examined touching the same matters, or any of them, as the said
master shall direct. And it is ordered that the said solicitor do give
credit for all sums of money by him received of or on account of the
petitioner. And it is ordered that if the said bill [or, bills] when
taxed be less by a sixth part than the said bill [or, bills] as delivered,
the said master do tax the costs of the petitioners of this reference, and
if the said bill [or, bills] when taxed shall not be less by a sixth part
than the said bill [or, bills] as delivered, the said master do tax the
costs of the said solicitor of such reference. And it is ordered that the
said master do certify the amount due from the petitioner to the said
solicitor, or from him to the petitioner, as the case may be, having re-
gard to the costs of such reference so to be taxed as aforesaid, and any
sum or sums of ^loney which may have been so received or paid as
aforesaid. And it is ordered that the amount so to be certified be
paid within twenty- one days after service of this order and of the
taxing master's certificate, to be made in pursuance thereof, unless the
Court shall upon special circumstances to be certified by the said
master otherwise order, upon application to be made within one week
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SOLICITOES. 505
after the date of the said master's certificate, by the party liable to
,pay such amount. And it is ordered that upon payment by the
petitioner to the said solicitor of what may be certified to be due to
him as aforesaid, or in case it shall appear that there is nothing due to
him, he, the said solicitor, do deliver to the petitioners upon oath all
deeds, books, papers, and writings in his custody or power belonging
to the petitionei-. And it is ordered that no proceedings at law or
otherwise be commenced against the petitioner in respect of the said
.bill [or, bills] pending such reference. EoUs Form.
Application of Party chargeable — Bill delivered mwe than One Month and
less than Twelve Months — Order of Course — Sect. 37.
Upon the petition of B., &o., it was alleged that the petitioners
employed the above-named A. as his solicitor, &o. That the said
solicitor, on or about the — day of — , delivered, &c. [see form, supra'].
That the petitioner submits to pay what shall appear to be due to the
said solicitor on the taxation of the said bill. It was therefore
prayed, and it is accordingly ordered, that it be referred to the taxing
master to tax and settle, &c. [Consequential directions as in last form.]
But the said master is to make his certificate in a month, unless the
said master shall certify that further time is necessary to enable him
to make his certificate, or this order is to be of no effect.
Application of Solicitor — Bill delivered more than One Month and less than
Twelve Months — Order of Course — Sect. 37.
Upon the petition of B., &c., it was alleged that the petitioner was
employed by A. &c. [see first form], that the petitioner transacted such
business, and on the — day of — caused a bill of his charges accom-
panied by a letter subscribed with his own proper hand to be person-
ally delivered [or, sent by post] to the said A. ; that the said A. has
not paid the petitioner's said bill, nor taken any steps to get the same
taxed ; It was therefore prayed, and it is accordingly ordered, that it be
referred to the taxing master to tax and settle the said bill ; and that
the petitioner and the said A. do produce, &c., and that they be ex-
amined, &c. ; and it is ordered that the petitioner do give credit, &c.,
and be at liberty to charge, &c. ; and it is ordered that in case the said
A. shall attend upon such taxation if the said bill when taxed be less
by a sixth part than the said bill so delivered, the said master do tax
the costs of the said A. of this reference ; and if the said bill when
taxed shall not be less by a sixth part than the said bill so delivered
the said master do tax the petitioner's costs of such reference ; and it
is ordered that the said master do certify the amount due from the
said A. to the petitioner, or from the petitioner to the said A., as the
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506 SOLICITORS.
case may be, having regard to the costs of isnch reference if taxed as
aforesaid, and any sum or sttms of money which ■ may have been so
received or paid as aforesaid. And in case the said A. shall pay to the
petitioner such sum as may be certified to be due to him without further
order, or in case the said master shall certify that there is nothing doe
to the petitioner, or that he has , been overpaid, it is ordered that the
petitioner do deliver to the said A. upon oath all deeds, books, papers,
and writings in his custody or power belonging to the said A. ; and it
is ordered that no proceedings at law or otherwise be taken by the
petitioners against the said A. pending such reference. And it is
ordered that a copy of this order be personally served on the said A.
one week at the least before any warrant is taken out for the taxation
of the said bill. Rolls Form.
Apjilieation of Party chargeahh^Order of Course to deliver and tax Bill —
Sect. 37.
Upon the petition of A., &c., it was alleged that tiie petitioner em-
ployed the above-named B. as his solicitor, &c. [see first form'] ; that the
petitioner is desirous of obtaining the papers in the possession of the
said solicitor belonging to the petitioner, but the said solicitor refuses
to deliver up the same until the bill of costs is paid ; that the said
solicitor although applied to has not delivered his biU of costs against
the petitioner ; that the petitioner submits to pay what shall appear
to be due in respect of the said bill : it was therefore prayed, and it is
accordingly ordered, that the said solicitor do within a fortnight after
notice hereof deliver to the petitioner a bill of fees and disbursements
in all suits, causes, and other matters of business in which he has been
employed as the attorney or solicitor for the petitioner : and it is
ordered that it be referred to the taxing master to tax and settle such
bill. [Consequential directions as in first form.] Seton, 831 ; Be Smith,
.19 Beav. 329.
Application of Party cJiargeable— Order of Course to tax after Action hut
hefore Verdict or Writ of Inquiry, and hefore expiration of Twelve
Months—Sect. 37.
Upon the petition of A., &c., if was alleged that the petitioner em-
ployed the above-named B. as his solicitor, &c. [see first form] ; that the
said solicitor has Commenced an action against the said A. in the
Court of, &c., to recover the amount of the said bill ; that the petitioner
submits to pay what shall appear to be due to the said solicitor on the
taxation of the said bill : It was therefore prayed, arid it is accordingly
ordered, that it be referred to the" taxing master to tax and settle the
said bill ; and that the petitioner and also the said solicitor do
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SOLICITORS. 507
produce, (too., and give credit," &c. [gee first form]. And in case it shall
appear that there is anything due to the said solicitor, it is ordered
that the said master do tax the said solicitor his costs of the said action
at law, and that such costs he added to the amount which shall be so
found due; and it is ordered that if the said hill when taxed be less
by a sixth par-t than the said hill so delivered, the said master do tax
the costs of the petitioner of this reference ; and if the said bill when
taxed shall not be less by a sixth part than the said bill so delivered
the said master do tax the costs of the said solicitor of such reference ; ■
and it is ordered that the said master do certify, &c., having regard,
&c. ; and it is ordered that the amount so to be certified be paid accord-
ingly unless the Court shall, upon special circumstances to be certified
by the said master, otherwise order upon application to be made
within one week after the date of the said master's certificate by the
party liable to pay such amount ; and it is ordered that upon payment
by the petitioner to the said solicitor of what may be certified to be
due to him as aforesaid, or in case it shall appear that there is nothing
due to him, the said solicitor do deliver to the petitioner upon oath all
deeds, books, papers, and writings in his custody or power belonging
to the petitioner; and it is ordered that all further proceedings at
law against the petitioner in respect of the said bill be stayed pending
such reference ; but the petitioner is to carry this order and the said
bill of costs into the office of the said masttr on or before the — day
of — , and in default thereof the said solicitor is to be at liberty to
proceed with the said action at law as if this order had not been made ;
and it is ordered that either party be at liberty to prosecute this order ;
and the said master is to make his certificate in a fortnight from the
— • day of — unless the said master shall certify that further time is
necessary to enable him to make his certificate, or this order is to be
of no effect ; and in case the said master shall not state any special
circumstances in his said certificate, and shall certify that there is
anything due from the petitioner to the said solicitor, it is ordered
that the amount so certified be paid by the petitioner to the said soli-
citor; and in default of such payment being made the said solicitor is
to be at liberty at any time after two days from the filing of the said
master's certificate, without service of this order or of such certificate,
to sue out execution against the petitioner by fi. fa., writ of elegit, or
otherwise, for the amount which may be so certified to be due as afore-
said. Eolls Form.
Applieation of Party chargeable — Order of Course to tax Bill delivered hy
Executor or Administrator of deceased Solicitor — Sect. 37.
Upon the petition of B., &c., it was alleged that the petitioner em-
ployed the above-named A., &c. [see first form, p. 504] ; that the said
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508 SOLICITORS.
A. is since deceased, and D. as the administrator [or, execiftor] of the
said A., on or about the — day of — delivered to the petitioner the
bill of fees and disbursements of the said A., which, as the petitioner
is advised, contains, &c. ; that the petitioner submits, &c. It was there-
fore prayed, and it is accordingly ordered, that it be referred, &c., and
that the petitioner and the said D. do produce, &c., and that they be
examined, &c. And it is ordered that the said D. do give credit for
all sums of money received by him or the said A. of or on account of
the petitioner, and be at liberty to charge all sums of money paid by
him or the said A. to or on account of the petitioner. And it is ordered
that if such bill when taxed be less by a sixth part, (fee. And it is
ordered that the said master do certify, &c., having regard, &c. And
it is ordered that any amount so to be certified to be due from the peti-
tioner to the estate of the said A. be paid to the said D. within twenty-
one days, ifec, unless, &c., upon application to be made within one
week after the date of the said master's certificate by the petitioner.
And it is ordered that upon payment by the petitioner to the said D.
of what may be .certified, &o., the said D. do deliver, &c. ; and it is
ordered that no proceedings at law or otherwise be commenced, &c.,
but the said master is to make his certificate in a month unless the said
master shall certify that further time is necessary to enable him to
make his certificate, or this order is to be of no effect. And in case the
said master shall certify that any amount is due from the estate of the
said A., and the said bill when taxed shall be less by a sixtli part than
the said bill as delivered, it is ordered that the said D. do pay to the
petitioner the amount which the said master shall certify to be due for
the costs of the said reference. Eolls Form.
Application of Party chargeable — 'Order of Course to deliver Bill to
Executor or Administrator of deceased Client — Sect. 37.
Upon the petition of B., &c., the executor [or, administrator] of C.
deceased, it was alleged that the said 0. in his lifetime employed the
above-named A. as his solicitor in, &c. [see first form, p. 604] ; that the
said 0. has since died, and that administration of his effects [or, pro-
bate of his will] has been granted to B. ; that the petitioner is desirous
of obtaining the papers in the possession of the said solicitor belonging
to the petitioner as such administrator [or, executor], bnt the said soli-
citor refuses to deliver up the same until his bill of costs is paid ; that
the said solicitor though applied to has not delivered his bill of costs
against the petitioner as such administrator or executor as aforesaid ;
that the petitioner submits to pay what shall appear to be due in
respect of the said bill : It was therefore prayed, and it is accordingly
ordered, that tho said solicitor do within a fortnight after notice hereof
deliver to tho petitioner a bill of fees and disbursements in all suits,
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SOLICITORS. 509
causes, and other matters of business in -wlaicli he has been employed
as the attorney or solicitor for the said C. deceased, and that it be re-
ferred, &c., to tax and settle the said bill, and that the petitioners and
the said solicitor do produce, &c., and that they be examined, &c., and
that the said solicitor do give credit, &c., and be at liberty to charge,
&o. [Consequential directions as in first form, ■p. 504:.'] Eolls Form.
Application of One of Two Parties chargecihle — Special Order — Leave to
dispute Retainer — Costs except as to Retainer to abide Besult — Sect. 37. .
Let it be referred to the taxing master to tax, &c., the three bills,
&c., of W. M. K. in certain matters in this, Court, namely, &c., and
amounting respectively to £ — . Let the applicant J. C. C. and Sir S. B.
respectively be at liberty to question the retainer by them or either
of them of the said W. M. K. ; and in case it shall appear that any-
thing is due to the said W. M. K., Let the master tax him his costs of
the action at law now pending in respect of £469 19«. 2d., the amount
of two of the said bills. Let such last-mentioned costs be added to
the amount which shall be so found due. Let the applicant and the
said Sir S. B. and W. M. K. respectively produce, &c. Let the said
W. M. K. give credit for all sums of money received by him of or on
account of the applicant J. C. 0. and the said Sir S. B., or either of
them, and be at liberty to charge all sums of money paid by him to
or on account of the applicant and the said Sir S. B., or either of them.
Let the costs of the reference so far as the same relate to the question
of the retainer be reserved until after the master shall have made his
certificate. And if the said bills when taxed be less by a sixth than
the said bills as delivered, Let the master tax the costs of the appli-
cant and of the said Sir S. B. of this application and obtaining this order
and of the said reference, other than the costs hereby reserved. And if
the said bill when taxed shall not be less by a sixth than the said bills as
delivered, the master is to tax the costs of the said W. M. K. of obtain-
ing this order and of the said reference other than the costs hereby
reserved. And the master is to certify the amount due from the appli-
cant and Sir S. B., or either of them, as the case may be, to the said
W. M. K., or from him to the applicant and Sir S. B., or to either of
them as the case may be, having regard to the costs of obtaining
this order and of the said reference to be taxed as aforesaid, and any
sum or sums of money which may have been so received or paid as
aforesaid. And if in taxing the said three bills it shall appear that
any of the said three bills or any parts thereof ought on taxation to
be disallowed as against the applicant and the said Sir S. B. jointly,
but are proper to be allowed as against either of them separately, then
such bills or parts of bills are to be treated as bills or parts of bills
against the applicant or the said Sir S. B. separately, as the case may
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510 SOLICITORS.
be. And Let the taxing master in his certificate distinguish by and to
whom each sum by him found due is to be paid. Let the amount so
to be certified be paid accordingly, unless the Court shall upon special
circumstances to be certified by the master otherwise order, upon ap-
plication to be made within one week after the date of the master's
certificate by the person or persons liable to pay such amount. And Let,
upon payment by the applicant and Sir S. B., or one of them, to the said
W. M. K. of what may be certified to be due to him, or in case it shall
appear that there is nothing due to him, Let the said W. M. K. deliver
upon oath to the applicant and Sir S. B., or to the applicant, or to the said
Sir S. B. as the case may be, all deeds, &c. Liberty for either party td
apply in Chambers as to the right to such deeds, &c., in case the parties
diifer. Let all further proceedings at law in respect of the said two
bills amounting to £469 19«. 2d. be stayed pending the said reference,'
and any of the parties are to be at liberty to prosecute this order. Let
the said master make his certificate on or before the 2nd March, 1866,
unless the master shall certify that further time is necessary to enable
him to make his certificate, or this order is to be of no effect. And
in case the master shall not state any special circumstances in his cer-
tificate, and shall certify that there is anything due from the applicant
and the said Sir S. B., or either of them, to the said W. M. K., Let the
amount so certified be paid by the applicant and the said Sir S. B., or
by such one of them as the master shall certify to be liable to pay the
same, as the case may be, to the said W. M. K. And in default of such
payment or payments or any one of them being made, the said
W. M. K. is to be at liberty at any time after two days from the filing
of the master's certificate, without service of this order or of such cer-
tificate, to sue out execution against the applicant and the said Sir
S. B., or such one of them as shall be certified to be liable as aforesaid,
by fi. fa., writ of elegit, or otherwise, for the amount which may be cer-
tified to be due as aforesaid. Be Kitton, 36 Beav. 369.
Reference to tax particular Items — Special Order — Sect. 37.
Let it be referred, &o., to tax and settle the following disputed
items in the bill of fees and disbursements, and for business done by
— as the solicitor of the petitioner, and amounting together to £ — ,
that is to say [state items']. Parties to produce and be examined, &o.
Costs reserved. Be Tryon, 1844, B. 761 ; Seton, 830.
Application of Solicitor to tax Agent's Bill — Money to be brought into Court
— Special Order — Sect. 37.
The petitioner H. (the solicitor) paying into Court the sum of £1000,
and undertaking to pay what shall appear to be due on taxation of his
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SOLICITORS. 511
bills, Let S. [the agent] deliver his further bill from the foot of the last
bill delivered. Let the master tax the biUg and ascertain the amount
of what is due to S., having regard to the sums of money which have
been paid by or on behalf of H. to S. on account thereof. Let the said
H. and S. produce, &c., and be examined, &c., and give credit, &c. And
upon payment into Court of the £1000, and the petitioner H. under-,
taking to re-deliver the papers, &c., now in the custody of S. as agent,
in case the Court shall at any time order them to be re-delivered, Let
S. deliver up, &c., all such papers. Let S. have liberty to apply for a
re-delivery of the papers, &c., whenever he shall be advised so to do.
Directions for investment of the £1000 and for accumulation. Be
Smith, 4 Beav. 309.
Taxation within One Month after Delivery — After One Month —
After Twelve Months — Costs — Sect. 37.
" No attorney or solicitor, nor any executor, administrator, or assignee of any
attorney or solicitor, shall commence or maintain any action or suit for the recovery
of any fees, charges, or disbursements for any business done by such attorney or
solicitor untU the expiration of one month after such attorney, &c., shall have
delivered unto the party to be charged therewith, or sent by the- post to, or left
for him at his counting-house, office of business, dwelUng-house, or last known
place of abode, a bill of such fees, charges, and disbursements, and which bill ,
shall either be subscribed," &c. : 6 & 7 Vict. o. 73, s. 37.
The term " business " applies only to business done in the character of solicitor :
see Morgan, 4th ed. 15, 19.
As to what constitutes delivery: see Daniell, 5th ed. 1733; Morgan, 4th
ed. 15.
" Upon the application of the party chargeable by such bill within such month,
it shall be lawful, in case the business contained in such biU, or any part thereof,
shall have been transacted in the High Court of Chancery, or in any other Court
of Equity, or in any matter of bankruptcy or lunacy, or in case no part of such
business shall have been transacted in any Court of Law or Equity, for the Lord
High Chancellor or Master of the Bolls, and in case any part of such business
shall have been transacted in any other Court, for the Court of Queen's Bench,
Common Pleas, &c., to refer such bill be taxed, &c., without any money being
brought into Court, and the Court or judge making such reference shall restrain
such attorney or solicitor, &c., from commencing any action," &c. : 6 & 7 Vict,
c. 73, s. 37.
As to who, as " parties chargeable," may apply for taxation : see Morgan,
4th ed. p. 16. Although not expressly named in the Act, the personal represen-
tatives of the party chargeable may apply for taxation : Daniell, 5th ed. 1743,
citing Jefferson v. Harrington, 7 M. & W. 137 ; 8 Dowl. 880.
In general a solicitor cannot obtain taxation of his agent's bUl without bring-
ing the amount into Court; but under special circumstances this condition
will be dispensed with, or the amount limited : Be Smith, 4 Beav. 309 ; 9 Beav.
342; Order, p. 510.
In case no application for taxation, under the 37th section, is made within a
month after delivery, the reference may be made, " either upon the application of
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512 SOLICITORS.
tho attorney or solicitor, or the executor, administrator, or assignee of the attorney or
solicitor whose bill may have been so delivered, sent, or left, or upon the applica-i
tion of the party chargeable by such bill, with such directions, and subject to
such conditions, as the Court or judge making such reference shall think proper;
and such Court or judge may restrain," &c. : 6 & 7 Vict. c. 73, s.,37.
" Provided always, that no such reference as aforesaid shall be directed, upon
an application made by the party chargeable with such bill, after a verdict shall
have been obtained or a writ of inquiry executed, in any action for the recovery
of the demand of such attorney or solicitor, or executor, administrator, or assignee
of such attorney or solicitor, or after the expiration of twelve months after such
bill shall have been delivered, sent, or left. as aforesaid, except under special cir-
cumslanceSj to be proved to the satisfaction of the Court or judge to whom the
application for such reference shall be made," &c. Ibid.
After final judgment has been signed the Court has jurisdiction to order taxa-
tion under the Act : He Barnard, 2 De Gr. M. & Gr. 359 ; 16 Beav. 5, 7, n.
But the Court may order delivery of the bill, although more than the twelve
months have elapsed : Re Foljambe, 9 Beav. 402 ; Jie Bailey, 34 Beav. 392.
Upon every reference under the 37th section, "if either the attorney, or
solicitor, or executor, &c., whose bill shall have been delivered, sent, or left, or
the party chargeable with such bill, having due notice, shall refuse or neglect to
attend such taxation, the officer to whom such reference shall be made may pro-
ceed to tax, &c., ex parte " : 6 & 7 Vict. c. 73, s. 37.
" In case any such reference as aforesaid shall be made upon the application
of the party chargeable with such bill, or upon the application of such attorney,
or solicitor, or executor, &c., and the party chargeable with such bill shall attend
upon such taxation, the costs of such reference shall, except as hereinbefore pro-
vided for, be paid according to the event of such taxation ; that is to say, if such
bill when taxed be less by a sixth part than the bill delivered, sent, or left, then
such attorney, or solicitor, or executor, &c., shall pay such costs ; and if such
bill when taxed shall not be less by a sixth than the bill delivered, sent, or
left, then the party chargeable with such bill, making such application, or so
attending, shall pay such costs ; and every order to be made for such reference
shall direct the ofBcer to whom such reference shall be made to tax such costs
of such reference, to be so paid as aforesaid, and to certify what upon such
reference shall be found due," &c. : 6 & 7 Vict. c. 73, s. 37.
The taxing master is in all cases to be at liberty to certify specially any cir-
cumstances relating to such bill or taxation, and the Court or judge shall be at
liberty to make thereupon any such order as such Court or judge may think right
respecting the payment of the costs of such reference. Ibid.
Provided also, that when such reference as aforesaid shall be made when the
same is not authorized to be made, except imder special circumstances as herein-
before provided, then the said Court or judge shall be at liberty, if it shall be
thought fit, to give any special directions relative to the costs of such reference.
Ibid.
The rule as to one-sixth is imperative, except where the taxation is granted only
under special circumstances, or where the master has certified specially : Be
Woollen, 15 M. & W. 504, cited in Morgan, 4th ed. 19 ; Daniell, 5th ed. 1754.
Where taxation was ordered after action brought, and more than a sixth was
taken off, the client was ordered to pay the costs of the action, and the solicitor
the costs of the reference : Be Hair, 11 Beav. 96.
And where taxation after payment was ordered on the ground of pre,^sure, the
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SOLICITOES. 513
costs of the application for taxation and of an appeal were ordered to abide the
result of taxation : Be Newman, L. R. 2 Ch. 707.
If the client applying for taxation is resident abroad, or give a false address, he
may be required to give security for costs, and for what may be found due :
Daniell, 6th ed. 1745, citing J?e fasmore, 1 Beav. 94 ; Se Dolman, 11 Jur. 1095 ;
Be Foley, 11 Beav. 456 ; Anon. 12 Sim. 262.
Orders of Course, and Special Applications under Sect. 37.
Where the bill has been delivered voluntarily by the solicitors the order for
taxation is of course, if made upon the application of the person chargeable or
liable to pay : Be GaitskeU, 1 Ph. 576, 581 ; 9 Jur. 909 ; Be Pender, 2 Ph. 69,
77 ; Hollcmd v. Gwynne, 8 Beav. 124 ; and might be obtained by motion of
course or petition at the EoUs.
In all othier cases the order for taxation, or for delivery and taxation, as the
case may be, has been obtained on summons : Ord. April 17, 1867.
The common order to tax directs payment " within twenty-one days after ser-
vice of this order, and of the taxing master's certificate to be made in pursuance
thereof": Be Belton, 25 Beav. 368.
As to enforcing orders for the delivery of bills of costs : S. 0.
If an order of course for taxation of costs is obtained in a case in which it ought
to have been obtained upon special application it will be discharged, though it
may appear upon the merits that the same order would have been granted if a
special application had been made : Harris v. Start, 4 My. & Cr. 261 ; Grove v.
Sansom, 1 Beav. 297 ; Gregg v. Taylor, 1 Beav. 123 ; Be Byrch, 8 Beav. 124.
. The misstatement of a material fact is fatal to an order of course for taxation :
Be Gedge, 15 Beav. 254 ; Be Perkins, 8 Beav. 241 ; 9 Jur. 220.
Where a solicitor was employed by A. and B., and the order of course was
obtained by A. alone, on the allegation that the solicitor was employed by A., the
allegation was held fatal to the order : Be Perkins, supra ; see also Be Gabriel,
10 Beav. 45 ; Be Eldridge, 12 Beav. 387.
The suppression of material facts is also fatal to the order of course : Be
Walker, 14 Beav. 227 ; Be Winterlottom, 15 Beav. 80 ; Be Hinton, 15 Beav.
192 ; Be Gedge, 15 Beav. 254 ; Be Holland, 19 Beav. 314.
But the suppression of an agreement not affecting the right to taxation does
not invalidate the order of course : Be Pringle, 21 Beav. 275.
And the client can obtain an order of course to tax the solicitor's bill, although
some of the items may have been included in a previous order for taxation not
stated : Be Fluker, 20 Beav. 144.
The circumstances under which the client obtains delivery by his solicitor of
the bill of costs are not bo material as to invalidate an order of course in which
those circumstances are not stated : Be David, 30 Beav. 278.
Where a solicitor is retained by two persons jointly, an order of course for tax-
ation obtained by one of them will be discharged for irregularity : Be Lewin,
16 Beav. 608 ; Be Perkins, 8 Beav. 241 ; Be Ohilcote, 1 Beav. 421 ; see also
Lockharf v. Hardy, 4 Beav. 224 ; see also Eellderton, 33 Beav. 201 ; Be Kition,
35 Beav. 369 ; Order, p. 509.
But the order for taxation obtained by two out of three parties liable to pay
was held regular where the third party was acting in collusion with his solicitor :
Be Hair, 10 Beav. 187.
2 L
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514 SOLICITORS.
An order obtained by the client for taxation of some only of the bills of costs
incurred, and for delivery of papers upon payment of part of the balance, is
irregular: Holland v. Qwynne, 8 Beav. 124; Be Law, 21 Beav. 481; Be
Pender, 8 Beav. 299 ; Be Wavell, 22 Beav. 634; Be Tetts, 33 Beav. 412.
A special application must be made when any special agreement has been
entered into as to costs : Be Winterbottom, 15 Beav. 80.
Where the solicitor had entered into a special agreement with his client for
interest on his bill with annual rests, and for a charge on the estate recovered, the
order of course for taxation was discharged : Be Moss, LI Beav. 59.
Order foe Delivery of Bill — Deeds, &c.
The Court and judges may, in the same cases in which they are respectively
authorized to refer a bill which has been delivered, sent, or left, to make such
order for the delivery by any attorney or solicitor, or the executor, or administra-
tor, or assignee of any attorney or solicitor of such bill as aforesaid, and for the
delivery up of deeds, &c., or otherwise touching the same, in the same manner as
has heretofore been done as regards such attorney or solicitor by such Courts or
judges respectively, where any such business. has been transacted in the Court in
which such order was made : 6 & 7 Vict. c. 73, s. 37.
In general it is an objection to an order of course for taxation if it directs the
solicitor to deliver up all the client's papers where the order to tax applies only
to some of the papers. But where the circumstances justify it, the order to
deliver up all papers is regular : Be Pender, 8 Beav. 299 ; affirmed 2 Ph. 69 ; see
also Be Teague, 11 Beav. 318.
The Court will before completion of a taxation order the delivery of papers by
a solicitor to his client, either upon payment into Court of the amount claimed,
or in case it appears from the solicitor's own account that a balance is due from
him to his client : Be Bevan and Whitting, 34 Beav. 439.
Evidence of Delivery op Bill.
It shall not in any case be necessary, in the first instance, for such attorney or
solicitor, or the executor, or administrator, or assignee of such attorney or solicitor,
in proving a compliance with this Act, to prove the contents of the bill he may
have delivered, sent, or left, but it shall be sufficient to prove that a bill of fees,
charges, or disbursements subscribed, &c., or enclosed in or accompanied by such
letter, &c., was delivered, sent, or left in manner aforesaid; but nevertheless it
shall be competent for the other party to shew that the bill so delivered, sent, or
left was not such a bill as constituted a hond fide compliance with this Act :
6&7 Vict. 0. 73, s. 37.
Power to authorize Action.
It shall be lawful for any judge of the Superior Courts of Law or Equity to
authorize an attorney or solicitor to commence an action or suit for the recovery
of his fees, charges, or disbursements against the party chargeable therewith,
although one month shall not have expired from the delivery of a bill as afore-
said, on proof to the satisfaction of the said judge that there is probable cause for
believing that such party is about to quit England : 6 & 7 Vict. c. 73, s. 37.
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SOLICITORS. 515
Eetainer — Leave to question.
The Court has jurisdiction to make an order for taxation giving liberty to the
client to question the retainer : Re Pyne, 5 G. B. 407 ; Re Reece, 18 L. J. (Ex.)
137 ; Re Thurgood, 19 Beav. 541.
But an order of course obtained by the client disputing the retainer and
omitting the submission to pay is irregular : Re Thurgood, supra.
Taxawon UNDiE Section 38.
Application of Third Party liable to pay^Gosts to abide Remit.
Upon the petition of B., &o. [state circumstances leading to the employ-
ment of the solicitor], that the said solicitor, on or about the — day of
— delivered nnto the petitioners his bill of fees and disbursements,
which, as the petitioner is advised, contains many unreasonable and
extravagant charges, and the same does not contain an;^ item for busi-
ness done in any of the Courts of Law or Equity ; that the petitioner
submits to pay, &c. It was therefore prayed, and it is accordingly
ordered, that it be referred, &c., to tax and settle the said bill, and
that the petitioner and the said solicitor do produce, &c., and be ex-
amined, &c. And it is ordered that if such bill when taxed be less by
a sixth part than the said bill as delivered, the said master do tax the
costs of the petitioner of this reference ; and if the said bill when taxed
shall not be less by a sixth part than the said bill as delivered, the
said master do tax the costs of the said solicitor of such reference.
Let the master certify the amount due in respect of the said bill,
having regard to the costs of such reference bo be taxed as aforesaid.
Let the amount so to be certified be paid within twenty-one days, &o.,
unless, &c. [see Order, p. 604.] Let no proceedings at law or other-
wise be commenced against the petitioner in respect of the said bill
pending such reference ; but the said master is to make his certificate
in a month, unless the said master shall certify that further time is
necessary to enable him to make his certificate, or this order is to be
of no effect. Be Bracey, 8 Beav. 338 ; Be Fiddey, 1867, A. 1469.
Where any person not the party chargeable within the meaning of the 37th
section, "shall be liable to pay or shall have paid such bill either to the attorney
or solicitor, his executor, administrator, or assign, or to the party chargeable, it
shall be lawful for such person, his executor, administrator, or assign, to make
such application for a reference for the taxation and settlement of such bill as the
party chargeable therewith might himself make, and the same reference and order
shall be made thereupon and the same course .pursued in all respects as if such
application was made by the party so chargeable with such bill as ^aforesaid " :
6 & 7 Vict. c. 73, s. 38.
In case such application is made when under the provisions of the Act a refer-
ence is not authorized to be made except under special circumstances, the Court
or judge may " take into consideration any additional special circumstances
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516 SOLICITORS.
applicable to the person making Such application, although such circumstances
might not he applicable to the party so, chargeable with the said bill as aforesaid
if he was the party making the application " : 6 & 7 Vict. c. 73, s. 38.
Under ordinary circumstances taxation under this section, " third party liable
clause," is as of course : -He Bracey, 8 Beav. 338 ; -Be Mddey, June 11, 1867 ; Be
Straford, 16 Beav. 27.
A taxation at the instance of a mortgagor of the bill of the mortgagee's solicitor
will be dealt with aa a bill between the solicitor and his client, the mortgagee, and
not as between the solicitor and mortgagor : Be Wells, 8 Beav. 416 ; 9 Jur. 820 ;
Be Jones, 8 Beav. 479 ; Be Fyson, 9 Beav. 117 ; Be Bwrrow, 17 Beav. 547 ; 18
Jur. 181. '
A bill paid by first mortgagees to their solicitor may be taxed at the instance
of second incumbrancers : Be Taylor, 18 Beav. 165.
And generally where a bill is taxed under this section it is taxed as between
the solicitor and the person who employed him, and consequently, in the absence
of any special agreement, as between solicitor and client : Be Taylor, 18 Beav. 165 ;
18 Jur. 666 ; see also Be Wells ; Be Jones ; Be Fyson ; Be Barrow, supra.
If the niortgagee has bound himself, as regards his solicitor, in such a maimer
as to prevent his taxing the bill, neither can the mortgagor : Be Baker, 32 Beav.
526 ; see also Be Massey, 34 Beav. 463.
It is said the mortgagor may tax it as against the mortgagee for the purpose of
diminishing the amount of his claim : Be Baker, supra.
The mortgagee must be served with the petition of the mortgagor to tax the
mortgagee's bill : S. C.
Taxation under Section 39.
Application of Party interested — Executors chargeable — Section 39 —
Costs reserved.
Let it be referred, &c., to tax the two bills of costs amounting re-
spectively to the sums of £ — and £ — , delivered by W. D. and W. D.
the younger to J. E., J. S., and G. W., as the executors of the will of
the testator C. P., and paid by them on behalf of the petitioner and the
said J. S. as in the petition mentioned. Let the said W. D. and W. D.
the younger produce before the taxing master upon oath, as he shall
direct, all books, papers, and writings in their custody or power re-
spectively relating to the matters hereby referred or any of them.
Let the said W. D. and W. D. the younger give credit for all sums
of money by them received for or on account of the petitioner or the
said J. E., J. S., and G.W. Let the said W. D. and W. D. the younger
be at liberty to charge all sums of money paid by them to or on account
of the petitioner or the said J. E., J. S., and G. W. And in case it
shall appear that the said bills or either of them are or is overpaid,
Let the said taxing master certify the amount overpaid, and Let the
said W. D. and W. D. the younger repay to the said J. E., J. S., and
G. W. the amount so overpaid by them. And the Court doth reserve
the consideration of the costs of the said taxation, and also of the said
petition, until after the taxing master shall have made his certificate.
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SOLICITOBS. 517
Be Dickson (V.-C. W.), 1855, A. 1622 ; affinned 8 De G. M. & G. 655 ;
see also Be Straford, 16 Beav. 27.
Similar Order — Sect. 39 — Costs to abide Besult.
Let it be referred to the taxing master to tax the three first bills of
fees and disbursements of G. H. W. delivered to J. C. and W. C. as in
the petition mentioned. Let the petitioner F. B. and the said G. H. D.
produce before the taxing master, upon oath, as he shall direct, all books,
papers, and writings in their custody or power respectively relating to
the said bills or any of the items or charges therein, and be examined
upon interrogatories touching the same as the taxing master shall
direct. Let the said G. H. D. give credit for all sums of money re-
ceived by him on account of the said J. C. and W. C. in respect of the
said bills, and Let the said G. H. D. be at liberty to charge all sums
of money paid by him to or on account of the said J. C. and W. C. in
respect of the said bUls. And if such bills when taxed be less by a
sixth than the said bills as delivered, the taxing master is to tax the
petitioner his costs of this reference. And if the said bills when taxed
shstll not be less by a sixth than the said bills as delivered, the taxing
master is to tax the. said G. H. D. his costs of this reference. Let the
taxing master certify the amount due from the said J. C. and W. C.
and the petitioner F. B. to the said G. H. D., or from the said G. H. D.
to the petitioner and the said J. .C. and W. C, or any or either of them,
as the case may be, having regard to the costs of this reference, so to
be taxed as aforesaid, and any sum or sums of money which may have
been so received or paid as aforesaid. Let the amount so to be certi-
fied be paid accordingly by the said G. H. D. and the petitioner F. B.,
as the case may be, unless the Court shall, upon special circumstances
to be certified by the taxing master, otherwise order, upon application
to be made within, one week after the date of the taxing master's cer-
tificate by the party liable to pay such amount. And upon the peti-
tioner P. B. paying to the said G. H. D. the amount (if any) which
shall appear due to him under this order, or in case it shall appear
that there is nothing due, Let the said G. H. D. deliver to the petJr
tioner upon oath all deeds, documents, and writings in his custody
and power belonging to the petitioner. Be Brake, 22 Beav. 438;
1855, A. 1501.
Taxation under Section 39.
The Court may in any case in which a trustee, executor, or administrator, has
become chargeable, &c., upon the application of a party interested in the property
out of which such trustee, executor, or administrator may have been paid, or be
entitled to pay such bill, refer the same and such attorney's, or solicitor's, or ex-
ecutor's, administrator's, or assignee's demand thereupon to be taxed and settled.
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518 SOLICITORS.
&c., with such directions and subject to auch conditions as the Court shall think
fit, and may make such order as the Court shall think fit for the payment of what
may be found due, and of the costs of such reference, to or by such attorney or
solicitor, or the executor, administrator, or assignee of such attorney or solicitor,
by or to the party making such application, having regard to the provisions in the
Act contained relative to applications for the like purpose by the party chargeablp
with such bill, so far as the same shall be applicable to such cases. And in ex-
ercising such discretion- the Court may take into consideration the extent and
nature of the interest of the party making the application : 6 & 7 Vict. c. 73, s. 39.
The taxation under this section, " third party interested clause," is by special
application, and not as of course : Re Strafwd, 16 Beav. 27.
Where a cestui que trust applies for taxation, if there has been no payment, the
rules under which the taxation is directed are those pointed out by sect. 37 : If
there has been payment, by sect. 41 : Be Dovmes, 5 Beav. 425.
When the Act applies the Court cannot in any case whatever send a bill for
taxation as against the solicitor if it has been paid more than twelve months, but
the Court may after that period direct a taxation as between a trustee and his
cestui que trust to justify the payment of the former : S. C.
A cestui que trust has no right to question his trustee's retainer of a solicitor as
between himself and the solicitor : Re Story, 8 W. E. 15.
Where a bill of costs against executors contained over-charges to a considerable
extent beyond what would have been allowed in their accounts, taxation after
payment by the executors will be ordered at the instance of a beneficiary : Re
Dickson, 8 De G. M. & G. 655, afarming S. C. (V.-C. W.), 1855, A. fo. 1622 ;
Order, p. 516 ; see also Re Drake, 22 Beav. 438 ; Order, p. 517.
Where an order for taxation had been made at the instance of cestuis que trust
of a bill incurred by two trustees, both of whom were dead, any balance that
might be found due from the petitioners was ordered to be paid into Court to a
separate account : Re Hallett, 21 Beav. 250.
In the case of Re Dickson, supra, the costs of the petition for taxation and of
the reference made were reserved ; and in the order on appeal affirming the order
below the costs of the appeal were to be dealt with by the Court below.
Taxation (after Paymest) under Section 41.
Costs to abide BemU of Taxation.
Let it be referred to the taxing master to tax and settle the seven
bills numbered, &o., amounting respectively to the sums of £ — , &c„
delivered by E. E. P. and N. W. to the applicant W. B., and retained
and paid by them out of moneys in their hands belonging to the appli-
cant. Let the said E. E. P. and N. W. and the applicant produce
before the said master upon oath as he shall direct all books, papers,
and writings in their custody or power respectively relating to the
matters hereby referred or any of them, and that they be examined
touching the same matters or any of them as the master shall direct.
Let the said E. E. P. and N. W. give credit for all sums of money by
them received of or on account of the applicant, and be at liberty to
charge all sums of money paid by them to or on account of the appli-
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SOLICITOES. 519
cant And in case it shall appear that the said bills or either of them
are or is overpaid. Let the master certify the amount overpaid. And
if the said bills when taxed be less by a sixth part than the said bills
as delivered, Let the master tax the costs of the applicant of this refer-
ence. And if the said biUs when taxed shall not be less by a sixth
than the said bills as delivered, Let the said master tax the costs of
the said E. E. P. and N. W. of such reference. Let the said master
certify the amount due from the applicant to the said E. E. P. and
N. W., or from them to the applicant, as the case may be, having
regard to the costs of such reference so to be taxed as aforesaid, and
any sum or sums of money which may have been so received or paid
as aforesaid. Let the amount so to be certified be paid within twenty-
one days after service of this order and of the taxing master's certifi-
cate to be made in pursuance thereof, unless the Court shall upon
special circumstances to be certified by the taxing master otherwise
order upon application to be made within one week after the date of
the certificate by the party liable to pay such amount. Let upon pay-
ment by the applicant to the said E. E. P. and N. W. of what may be
certified to be due to them as aforesaid, or ui case it shall appear that
there is nothing due to them, they the said E. E. P. and N. W. do
deliver to the applicant upon oath all deeds, books, papers, and
writings in their custody or power belonging to the applicant. Be
Philips (V.-C. W.), Dec. 7, 1872; Be Street, L. E. 10 Eq. 165.
Taxation after Payment — Sect. 41 — Costs of Beferenee to abide Bemlt of
Taxation — Costs of Application to he paid by Solicitor.
The petitioner by her counsel submitting to pay to G. W. A. [the
solicitor] what shall appear due to him upon taxation of his bills of
costs. Let it be referred, &o., to tax, &c. Let the petitioner and the
said G. W. A. produce, &c., and be examined, &c. Let the said
G. W. A. give credit, &c., and be at liberty to charge, &c. And if
such bills when taxed be less by a sixth than the said bills as de-
livered, the taxing master is to tax the petitioner her costs of such
reference. And if the said bills when taxed shall not be less by a
sixth than the said bills as delivered, the taxing master is to tax the
said G. W. A. his costs of such reference. Let the taxing master
certify the amount due from the petitioner to the said G. W. A., or
from the said G. W. A. to the said petitioner, having regard to the
said costs so to be taxed as aforesaid, and any sum or sums of money
which may have been so received or paid as aforesaid. Let the
amount so to be cei-tified be paid accordingly, unless the Court shall
upon special circumstances to be certified by the taxing master other-
wise order upon application to be made within one week after the date
of the taxing master's certificate by the party liable to pay such
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520 SOLICITOES.
amount. Let, npan the petitioner pursuant to the said submission
paying to the said G. W. A. what if anything shall appear due to him
upon such taxation, or in case it shall appear that the said bills
are already paid, the said G. W. A. deliver to the petitioner upon
oath all deeds, &c. Let the said G. W. A. pay to the petitioner her
costs of this application, to be also taxed by the taxing master. Be
Abbott, 18 Beav. 393.
Taxation after Payment — Sect. 41 — Costs reserved.
Let it be referred, &c., to tax and settle the bill of costs amounting
to £ — delivered by A. [the solicitor] in the petition named to the
petitioner B., and paid by him as in the petition mentioned. Let the
said A. and the petitioner produce, &c., and be examined, &c., and Let
the said A. give credit, &c., and be at liberty to charge, &c. And in
case it shall appear that the said bill is overpaid. Let the said master
certify the amount overpaid, and Let the said B. within twenty-one
days after service of this order and of the taxing master's certificate to
be made in pursuance thereof, repay to the petitioner B. what shall be
certified to be the amount so overpaid by him. And the said master
is to be at liberty to state any circumstance specially at the request of
either party as he shall think fit. Let the consideration of the costs
of taxation and of this petition [summons] be reserved until after the
taxing master shall have made his certificate. Be Mole, 1846, B. 38;
Seton, 844.
Taxation after Payment — Bepresentative of deceased Client and deceased
Solicitor — Special Costs — Costs reserved — Sect. 41.
G. W. N., the personal representative of T. N. deceased [the original
client], appearing by counsel, and he and the petitioner A. S. [personal
representative of surviving executor of the client] undertaking that
they or one of them will pay to E. V. the son and W. H. [solicitors,
co-partners, and E. V. executor of deceased solicitor], or one of them,
what if anything shall be found due to him or them respectively upon
the taxation and accounts hereinafter directed. Let the said E. V. the
son deliver to the said A. S. his bill of costs for all business done by
him alone subsequent to the death of his father for or on account of
the said W. S. and M. N. or either of them, or otherwise for or on
account of the estate of the said T. N. deceased other than the business
comprised in the four bills of costs already delivered. Let the three
orders dated, &c., be discharged. Let it be referred, &c., to tax the four
bills already delivered and the bills to be delivered under this order
[usual directions except as to costs]. Let an account be taken of all sums
of money paid to or possessed or received by the said E. V. and W. H.,
or either of them, since the decease of the said E. V. the father in or
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SOLICITOES. 521
towards the discharge of the said bills or any of them, or otherwise
from or on aocotmt of the said W. S. deceased and the estate of the
said T. N. Let the master certify what on taking the said accounts
is dne to or from the said E. V. and W. H. or either of them. And in
case it shall be certified that any balance is due from them or either
of them. Let the same be paid to the said A. S. by the person or per-
sons from whom the same shall be found due. Eeserve the question of
the costs of taxation and of the petition to the Master of the EoUs and
of this petition, and of the several orders already made, until after the
taxation shall have been made. — Liberty to apply. Be Vines and Hobbs,
Ex parte Shackel, 2 De G. M. & G. 842.
Taxation after Payment — Sect. 41.
The payment of the bill " shall in no case preclude the Court or judge to whom
application shaU he made from referring such bill for taxation, if the special cir-
cumstances of the case shall, in the opinion of such Court, appear to require the '
same, upon such terms and conditions, and subject to such directions, as to such
Court or judge shall seem right, provided the application for such reference be
made within twelve calendar months after payment " : 6 & 7 Vict. c. 73, s. 41.
The " special circumstances " have generally been held to signify either " pres-
sure accompanied by some overcharge," or " overcharges or errors so gross as to
amount to fraud " : Morgan, 4th ed. 24.
Undue pressure, coupled with slight items of overcharge, or gross overcharges
amounting to evidence of fraud without undue pressure, are sufficient to entitle
the applicant to the order : Dan. 5th ed. 1747, citing £e Wells, 8 Beav. 416 ; 9
Jur. 820; Be Ourrie, 9 Beav. 602; Se Earding, 10 Beav. 250 ; He Bubiard, 15
Beav. 251 ; Ee Barrow, 17 Beav. 547 ; Be Strother, 3 K. & J. 518, 528 ; 3 Jur.
(N.S.) 736; Be Finch, 4 De G. M. & G. 108; Be Dickson, 8 De G. M. & G.
655, 660; Be Foster, 2 De U. F. & J. 105, 117 ; 6 Jur. (N.S.) 687; Be New-
man, L. E. 2 Ch. 707. See also before the Act, Horlock v. Smith, 2 My. & Cr.
495, per Lord Cottenham.
For cases where taxation upon the ground of overcharge has been refused : see
Be Drake, 8 Beav. 123 ; Be Gurrie, 9 Beav, 602 ; 10 Jur. 974 ; Ee Strike, 11
Beav. 304; Ee Thompson, W. N. (1866), 48 ; cited in Daniel!, 5th ed. 1748.
As to the cases which constitute the " undue pressure," see Morgan, 4th ed.
24 ; Daniell, 5th ed. 1748.
And the pressure must have been of such a kind as to have rendered it difficult
or impossible to have the costs taxed before payment in the ordinary course ; Be
Browne, 1 De G. M. & G. 322.
After payment of a bill of costs specific items of overcharge must be relied
upon in the evidence : Ee Bennet, 8 Beav. 496 ; Ee Abbott, 18 Beav. 393 ; Ee
Brown, 1 De G. M. & G. 322 ; Be Finch, 4 De G. M. & G. 108 ; Ee Boyle, 5 De
G. M. & G. 540.
Where a bill of costs has been delivered and security given for the amount, that
is equivalent to payment for the purpose of precluding taxation without special
circumstances : Ee Boyle, 5 De G. M. & G. 540.
Where a bill of costs against executors contained charges to a great extent
beyond what would have been allowed in their accounts with testator's estate, it
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522 SOLICITOES.
was held a proper case for taxation after payment at the instance of beneficiaries :
Be Dickson, 8 De G. M. & G. 655.
Where a mortgagee's solicitor retains the amount of his bill of costs out of the
sale moneys of the mortgaged estate, charging the same in account delivered to the
mortgagor, an order obtained within twelve months for taxation is of course : Be
Bignold, 9 Beav. 269.
The retention by the solicitor out of money for which he has to account to his
client of the amount of his bill of costs is not payment within the meaning of the
41st section if the bill be not delivered : Be Street, L. E. 10 Bq. 166.
The retainer by the solicitor of the amount of the hill will be considered equiva-
lent to payment, according to the circumstances of each case, and the period at
which such retainer was made : Be Vines and Edhbs, 2 De G. M. & G. 842 ; Be
Pemherton, 2 De G. M. & G. 960 ; Be Brady, 15 W. B. 632 ; Be Oawley and
Whatley, 18 W. R. 1125.
Agreements for EEMruNERATioisr.
33 & 34 Vict. c. 28.
" An attorney or solicitor may make an agreement in writing with his client
respecting the amount and manner of payment for the whole or any part of any past
or future services, fees, charges, or disbursements in respect of business done or to
be done by such attorney or solicitor, whether as an attorney or solicitor, or as an
advocate or conveyancer, either by a gross sum, or by commission, or percentage,
or by salary, or otherwise ; and either at the same, or at a greater, or at a less rate
as or than the rate at which he would otherwise be entitled to be remunerated,
subject to the provisions and conditions :
" Provided always, that where any such agreement shall be made in respect of
business done or to be done in any action at law or suit in equity, the amount
payable under the agreement shall not he received by the attorney or solicitor
until the agreement has been examined and allowed by a taxing master of a Court
having power to enforce the agreement ; and if it shall appear to such taxing
master that the agreement is not fair and reasonable, he may require the opinion
of a Court or judge to be taken thereon by motion or petition ; and such Court or
judge shall have power either to reduce the amount payable imderthe agreement,
or to order the agreement to be cancelled, and the costs, fees, charges, and dis-
bursements in respect of the business done to be taxed in the same manner as if
no such agreement had been made " : 33 & 34 Vict. c. 28, s. 4.
" Such an agreement will not affect the amount of or any right or remedies for
the recovery of any costs recoverable from the client by any other person, or pay-
able to the client by any other person ; and any such other person may require
any costs payable or recoverable by him to or from the client to be taxed accord-
ing to the rules for the time being in force for the taxation of such costs, unless
such person has otherwise agreed :
" Provided always, that the client who has entered into such agreement shall
not be entitled to recover from any other person under any order for the payment
of any costs which are the subject of such agreement more than the amount pay-
able by the client to his own attorney or solicitor under the same " : 33 & 34
Viet. c. 28, s. 5.
The agreement as to remuneration is to exclude future claims : sect. 6.
Provisions in the agreement that the attorney or solicitor is not to be liable for
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SOLICITORS. 523
negligence, or that he is to be relieved from responsibility, are wholly void:
sect. 7.
No action or suit shall be brought or instituted upon the agreement ; but every
question respecting the validity or effect of the agreement may he examined and
determined, and the agreement either enforced or set aside without suit, or action
or motion, or petition : sect. 8.
" If it shall appear that the agreement is fair and reasonable the same may be
enforced in such manner and subject to such conditions, if any, as to costs as the
Court may think fit. If the terms are not fair and reasonable the same may be
declared void, the Court may order the agreement to be given up to be can-
celled, " and may direct the costs, fees, charges, and disbursements incurred or
chargeable in respect of the matters included therein to be taxed in the same
manner and according to the same rules as if such agreement had not been
made ; and the Court may make such order as to the costs of such motion or
petition, and the proceedings thereon, as the Court may think fit " : sect. 9.
" When the amount agreed for has been paid by or on behalf of the client, or
by any person chargeable with or entitled to pay the same, the Court may, upon
the application of the person who has paid the amount, within twelve months after
payment, if the special circmnstances require that the agreement should be re-
opened, re-open the same, and order the costs to be taxed, and the whole or part
of the sum received to be repaid " : sect. 10.
Where the agreement is made by the client in capacity of guardian, or of
trustee, or of committee, the agreement must before payment be laid before the
taxing master, and he may disallow any part of it, or may require the direction
of the judge to be taken by motion or petition. If the client pay the whole or
any part of the amount without the previous allowance of the judge or taxing
master, he is liable at any time to account to the person whose property is
charged, and the Court may order him to refund : Ibid.
The Act gives no validity to the purchase by the solicitor of the interest of the
client in any suit or action, or to an agreement by which payment is to depend
upon success in such suit or action : sect. 11.
Nor to any disposition, &c., which might be void against a trustee or creditor
in bankruptcy : sect. 12.
If after an agreement entered into under the Act and before complete per-
formance the solicitor dies, or becomes incapable to act, the Court may, upon
application by any party to the agreement or his representatives, either enforce
or set it aside : sect. 13.
If after the agreement the client changes his solicitor before the conclusion of
the business (which he is to be at liberty to do), the solicitor is to be decreed in-
capable to act under the agreement within the meaning of the 13th section, and
upon an order for taxation the Court may direct the taxing master to have regard
to the circumstances under which the change of solicitor took place : sect. 14.
Except as in the Act provided the bill of a solicitor for the amount due under
the agreement is not subject to taxation : sect. 15.
Inteeest ojsr Moneys disbursed by Solicitoe— Interest on Moneys
BELONGING TO CLIENT,
" Subject to any general rules or orders hereafter to be made, upon every taxa-
tion of costs, fees, charges, or disbursements, the taxing master may allow interest
at such rate and from such time as he thinks just on moneys disbursed by the
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524 SOLICITORS.
attorney or solicitor for his client, and on moneys of the client in the hands of the
attorney or solicitor, and improperly retained by him " : 33 & 34 Vict. c. 28, s. 17.
But this section applies only as between a solicitor and his own client, and '
does not apply to a taxation of costs to be paid out of a fund in Court belonging
wholly or partly to other persons than the client : Hartland v. Murrell (L. C. for
M. E.), L. R. 16 Bq. 285.
" The Legal Peactitionees Act, 1875,"
38 & 39 Vict. c. 79.
Party chargeable delaying Payment.
" It shall be lawful for any judge of the Superior Courts of Law and Equity to
authorize an attorney or solicitor to commence an action or suit for the recovery of
his fees, charges, or disbursements against the party chargeable therewith, and also
to refer his bill of fees, charges, and disbursements, and the demand of such
attorney and solicitor thereupon, to be taxed and settled by the proper officer of
the Court in ■which such reference shall be made, although one month shall not
have expired from the delivery of the bill of fees, charges, or disbursements, on
proof to the satisfaction of the said judge that there is probable cause for believing
that the party chargeable therewith is about to quit England, or to become a
bankrupt, or a liquidating or compounding debtor, or to take any other steps or
do any other act which, in the opinion of the judge, would tend to defeat or delay
such attorney or solicitor in obtaining payment " : 38 & 39 Vict. c. 79, s. 2.
Section 37 of the 6 & 7 Vict. c. 73, from the words " Provided also that it shall
be lawful for any judge of the Superior Courts of Law and Equity " to end of
section, is repealed, except as to anything heretofore duly done thereunder, and
except so far as may be necessary for the purpose of supporting and continuing
any proceedings taken before the passing of the Legal Practitioners Act: 38 &
39 Vict. c. 39, s. 2.
Amendment of Bill of Costs.
A solicitor having dehvered his bill is bound by it, and the taxation must be
upon that hill. He is not entitled as of course to reduce his demand, or to reserve
the power of adding to the charges : Be Garven, 8 Beav. 436.
And if after delivery of the bill, and before notice of an order obtained for
taxation, he substitutes a second bill, he must pay all costs incurred by the client
up to the date of the order : Be Chambers, 34 Beav. 177.
After the bill has been referred for taxation, no alteration can be made in it
{Be Wells, 8 Beav. 416; Be Catlin, 18 Beav. 519; Davis v. Earl of Dysart,
8 De a. M. & G. 33) except by consent or on special application for leave to
amend : Morgan, 4th ed. 19 ; Be Andrews, 17 Beav. 510, 514.
Where liberty was given to the solicitor to insert omitted items and increase
certain undercharges, he was not allowed to decrease the overcharges, and was
ordered to pay costs of the application : He Whalley, 20 Beav. 576 ; Be Blakesley,
32 Beav. 381 ; but comp. Be Tilleard, 32 Beav. 476.
Taxation of Costs in Charity Matters,
The Charity Commissioners may order the bill of costs of any solicitor for
business done by him on behalf of any charity, or the trustees thereof, to be
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SOLICITOES. 525
taxed by the taxing master of the Court of Chancery ; and if the bill is reduced
on taxation by one-sixth or more, the coats of taxation are to be paid by the
solicitor, otherwise out of the funds of the charity by the trustees thereof; and
the commissioners if satisfied as to any bill that it contains exorbitant charges
may order it to be so taxed, notwithstanding it may have been paid by the
trustees of the charity at any period not more than six calendar months before
such order ; and the amount taxed off any such paid bill is to be a debt due from
the solicitor to the trustees, and is to be paid by him to them accordingly : 18 &
19 Vict. c. 124, s. 40.
Enforcing Orders against Solicitor for Payment op Monet found
DUE ON Taxation.
The default of a solicitor in payment of the balance foimd due from him on
taxation is default within the meaning of the exceptions of the Debtors Act,
1869 (32 & 33 Vict. c. 62, s. 4), and an attachment may issue against him : Re
Bush, L. E. 9 Eq. 147 ; see also Harvey v. Hall, L. K. 16 Bq. 324.
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CHAPTER XXX.
PEODUCTION OF CESTUI QUE VIE.
6 Anne, c. 12.
Production at Parish Church.
Upon motion, &c,, by counsel for A., who alleged that the said A.
is entitled to the immediate reversion of — after the death of B., who
the said A. hath good reason to believe is dead, and that his death is
concealed by C, as by affidavit appears ; and upon reading the said
affidavit, Let the said C. produce and shew the said B. to, &o., at the
door of the parish church of — , in the county of — , on the — day of
— , between the hours of — and — in the forenoon of the same day,
according to the statute made and passed, &c. Be Clossey, 2 Sm. & Giff.
46 ; Seton, 521.
(Second Order.)
Production before Commissioners or the Court.
Whereas by an order dated, &c. [recite former order']. Now upon
motion, &c., and it appearing by the affidavit of, &c. [state service of
the first order, attendance at the place therein mentioned, and the non-
production of the person'], and upon reading the said order and affidavit.
Let the said A., having personal notice thereof, produce the said B.
[If before commissioners : Before — , of — , at — , on the — day of — ,
between the hours of — and — ] [If before the Court : At the bar of this
Court, at the sitting of this Court on the — day of — ], according
to the said statute. Ex parte Be Trafford (V.-C. W.), Nov. 1845, A. 15 ;
Be Clossey, supra; Be St. John's Hospital, Cirencester, 16 W. E. 556.
{Final Order.') ,
Cestui que vie to be deemed dead.
Whereas by an order dated, &o. [recite former order]. Now upon
motion, &o., who alleged that the said W. and J. have been personally
served with the said order as by affidavit now produced and read
appears, and the said W. and J. not producing the said M. (the cestui
que vie) in Court pursuant to the said order, and no one attending for
the said W. and J., Declare that the said M. ought to be deemed and
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PRODUCTION OF CESTUI QUE VIE. 527
taken to be dead, according to the said statute, and order the same
accordingly. Be Lingen (V.-C. of E.), 1 May, 1841 ; Seton, 522.
Eight to Ordee.
" Any person or persons who hath or shall have any claim^or demand in or to
any remainder, reversion, or expectancy in or to any estate after the death of any
person within age, married woman, or any other person whatsoever, upon affida-
vit made in the High Court of Chanceiy by the person so claiming such estate
of his or her title, and that he or she hath cause to believe that such minor,
married woman, or other person is dead, and that his or her death is concealed by
such guardian, trustee, husband, or any other person; shall and may once a year,
if the person aggrieved shall think fit, move the Lord Chancellor, Keeper, or
Commissioners for the custody of the Great Seal of Great Britain for the time
being to order, and they are hereby authorized and required to order, such
guardian, trustee, husband, or other person concealing or suspected to conceal
such person, at such time and place as the said Court shall direct, on personal or
other due service of such order, to produce and shew to such person or persons
(not exceeding two) as shall in such order be named by the party or parties prose-
cuting such order, such minor, married woman, or other persons aforesaid " :
6 Anne, c. 18, a. 1.
" And if such guardian, trustee, husband, or such other person as aforesaid,
shall refuse or neglect to produce or shew such infant, married woman, or such
other person on wliose life any such estate doth depend, according to the direc-
tions of the said order, then the Court of Chancery is hereby authorized and re-
quired to order such guardian, trustee, or other person, to produce such minor,
married woman, or other person concealed, in the said Court of Chancery, or
otherwise before commissioners to be appointed by the said Court, at such time
and place as the Court shall direct, two of which such commissioners shall be
nominated by the party or parties prosecuting such order at his or their costs and
charges " ; Ibid.
" And in case such guardian, trustee, husband, or other person shall refuse or
neglect to produce such infant, married woman, or other person concealed, in the
Court of Chancery or before such commissioners, whereof return shall be made by
such commissioners, and that return filed in the Petty Bag Office, in either or
any of the said cases the said minor, married woman, or such other person so
concealed, shall be taken to be dead, and it shall be lawful for any person claim-
ing any right, title, or interest, in remainder or reversion or otherwise, after
the death of such infant, married woman, or such other person so concealed as
aforesaid, to enter upon such lands, tenements, and hereditaments, as if such
infant, married woman, or other person were actually dead " : Ibid.
Application foe Oedeb — Afiidavit.
The application for the order is made by an ex parte motion : Ex parte Orant,
6 Ves. 512 ; Ex parte Whalhy, i Buss. 561 ; Be Isaac, 4 My. & Cr. 11, 15.
Where by the affidavit it appeared there was reason to suspect the cestui qtie
vie to be dead, but the affidavit did not allege that the death was concealed, the
Court has nevertheless made the order : Be Dennis, 7 Jur. (N.S.) 230 ; 8 W. R.
649 ; Be Ohssey, 2 Sm. & Giff. 46 ; Order, p. 526.
Service op Oeder.
The order must be served upon the person orderedto make the production.
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528 STATUTOBT JURISDICTION.
NON-PEODUCTION — SECOND OeDER.
In case of non-production pursuant to the first order application must be made
that the cestui que vie he produced, either before commissioners or in open Court.
The application is made ex parte, supported by affidavit proving service of the
first order on the person ordered to make the production, the attendance at the
place named, and the non-production : Be St. John's Hospital, 16 W. R. 556 ;
Order, p. 526 ; Dan. 5th ed. 1909.
If the cestui que vie is ordered to be produced before commissioners, and the
production is not made, their return is filed in the Petty Bag Office : 6 Anne,
c. 18, s. 1.
In case of non-production under the second order, the final order is applied for
on affidavit of service of the second order, declaring the cestui que vie to be
deemed dead.
Commissioners — Tenant foe Life or Cestui que Vie abroad.
" If it shall appear to the said Court by affidavit that such married vroman or
other person for whose life such estate is holden is or lately was at some certain
place beyond the seas, in the said affidavit to be mentioned, it shall and may be
lawful for the party or parties prosecuting such order as aforesaid, at his or their
costs and charges, to send over one or both of the said persons appointed by the
said order to view such minor, married woman, or other person for whose life any
such estate is holden " - S Anne, o. 18, s. 2.
" And in case such guardian, trustee, or other person concealing or suspected to
conceal such persons as aforesaid, shall refuse or neglect to produce or procure to
be produced to such person or persons a personal view of such infant, married
woman, or other person for whose life any such estate is holden, then and in such
case such person or persons are hereby required to make a true return of such
refusal or neglect to the Court of Chancery, which return shall be filed in the
Petty Bag Office " : Ibid.
"And thereupon such minor, married woman, or other person for whose life
any such estate is holden, shall be taken to be dead " : Ibid.
Tenant foe Life oe Cestui que Vie proved to be alive.
" If any such guardian, trustee, or other person or persons holding or having
any estate or interest determinable upon the life or lives of any other person or
persons shall, by any affidavit or otherwise, to the satisfaction of the said Court of
Chancery make it appear that he, she, or they have used his, her, or their utmost
endeavours to procure such infant, married woman, or other person or persons
on whose life or lives such estate or interest doth depend to appear in the said
Court of Chancery or elsewhere according to the order of the said Court in that
behalf made, and he, she, or they cannot procure or compel such infant, married
woman, or other person or persons so to appear, and that such infant, married
woman, or other person or persons on whose life or lives such estate or interest
doth depend is, are, or were living at the time of such return made and filed as
aforesaid, then it shall be lawful for such persons to continue in the possession,"
&c. : 6 Anne, c. 18, s. 4.
Costs.
The Court has no jurisdiction to make any order as lo the costs of the applica-
tion : Re Isaac, 4 My. & Cr. 11.
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( 529 )
CHAPTER XXXI.
CHAEITABLE TEUSTS, ETC., ACTS.
Sir Samuel Eomilly's Act.
52 Geo. 3, c. 101.
Declaee that it is consistent with the original scope and object of
the institution in the petition mentioned and called Manchester New
College, that the same should be transferred to London, or to such
other place as in the opinion of the majority of the trustees for the
time being of the said institution shall be best calculated to advance
the object and design of the said institution ; and that it is in the
power of the majority of the trustees for the time being of the said
institution to transfer the same accordingly, and that notwithstand-
ing such transfer, the rents, interest and income of the property held
in trust for the said institution ought to be applied according to the
direction of the committee for the time being of the said trustees. —
Costs of petitioners and respondents of petition, and of information
prepared but not filed, to be taxed as between solicitor and client, and
paid out of rents, interest and income. Be Manchester New College, 1 6
Beav. 610.
Appointment of new Trustees — Contract for Pwrchase.
Let the petitioners, — , be appointed trustees fof purposes of the
trust or charity in the petition mentioned. Let the close of land
situate, &c., vest in the said petitioners as such trustees. Let the
contract for sale of the said close of land to — , dated, &c., be con-
firmed and carried into execution. And upon payment Of the
purchase-money Let the petitioners convey to the purchasers. — Refer
to taxing master to tax the petitioners their costs, charges and
expenses, and the Attorney-General his costs as between solicitor and
client of petition. — Directions for payment out of purchase-money. —
Balance of purchase-money to be laid out in other lands, and in the
meantime invested by the trustees in Bank 3 per Cent. Annuities.
Income to be applied by trustees in the mode prescribed by the deed of
settlement of the charity. — Provision for the election of new trustees
in case of vacancies. Notice of such election to be affixed on door of
church at Eccleshall two weeks at least previously to such election
being made. Trustees for the time being to have the same power of
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530 STATUTORY JURISDICTION.
demising lands to be purchased as "was contained in the deed of
settlement with regard to land comprised therein. — Liberty to apply.
Overseers of the Poor of Ecdeshall, 16 Beav. 297.
SiE Samuel Eomilly's Act.
62 Geo. 3, c. 101.
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 administration of any trust for charitable pur-
poses, the Lord Chancellor or Master of the Rolls is empowered upon the petition
of any two or more persons, to mate such order therein and with respect to costs
as may seem just. And the order made is to be final and conclusive, unless
appealed from within two years : 52 Greo. 3, o. 101, s. 1.
And the Attorney-General, acting ex officio, is empowered to make application
by petition to the Court of Chancery with respect to any charity, under the pro-
visions of Sir Samuel Romilly's Act, or under the provisions of any Act autho-
rizing the application to the Court by petition : 16 & 17 Vict. c. 137, s. 43.
The Act of 52 Greo. 3, c. 101, has been held not to apply to cases of constructive
trusts, or where different persons claim the trust property adversely to each other,
or where there is a dispute as to the persons in whom the legal estate is vested :
Dan. 5th' ed., 1762, citing Ex pcurte Brown, G. Coop. 295 ; Ex ■parte Bees, 8 V. & B.
10; Dean's Charity, 8 Sim. 34; West Bet/ord Church Lands, 10 Sim. 101,
109.
The Court has no power under the Act to repair a previous misapplication of
trust funds : EalVs Charity, 14 Beav. 116, 120.
• But where the direction of the Court is required for the administration of a
charitable trust, and there is no question between the trustees and strangers, and
the objects of the charity have no separate and conflicting interests, the Court has
jurisdiction on petition under the Act : Manchester New College, 16 Beav. 610 ;
Order, p. 529 ; Att.-Oen. v. Bishop of Worcester, 9 Hare, 378.
And the Court has power under the Act to declare the proportions in which the
different charitable institutions are entitled : Re Hall's Clmrity, 14 Beav. 115 ;
15 Jur. 940.
A scheme settled by decree which might be altered upon information, may be
altered upon petition under the Act, if otherwise a proper subject for such
petition : Att.-Oen. v. Bishop of Worcester, supra.
And if it appears to be for the benefit of a charity that part of the estate
belonging to it should be sold, an order for that purpose may be made upon
petition under the Act : 5e ParMs Charity, 12 Sim. 329 ; Overseers of Eccles-
hall, 16 Beav. 297 ; Order, p. 529 ; Re Ashton Charity, 22 Beav. 288. But the
jurisdiction has been doubted : Re Suir Island Charity, 3 J. & Lat. 171 ; Re
Newton's Charity, 12 Jur, 1011.
Unless the petition is presented by the Attorney-General acting ex officio, or in
a matter which is pending at the time of the apphcation, the order or certificate
of the Charity Commissioners must be obtained before the petition will be
answered : Dan. 5th ed. 1764.
Unless the application is made by the Attorney-General acting ex officio, the
petition must be presented by two or more, who should have a direct interest in
the charity : Dan. 5th ed. 1763 ; Re Record Charities, 2 Sw. 518.
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CHARITABLE TRUSTS, ETC., ACTS. 531
Two at least of the petitioners must be individuals, a corporation not being
within the meaning of the Act : lie London,, Brighton, and South Coast BaUway,
18 BeaY. 608.
And unless the petition is presented by the Attorney-General acting ex officio,
or in a matter pending at the time of the application, the certificate of the Charity
Commissioners must be first obtained : see the Charitable Trusts Act, 1853, pod,
p. 532 ; Be London, Brighton, and South Coast Bailway, 18 Beav. 608 ; Be Ford's
Charity, 3 Drew. 324 ; Be Jarvis's Charity, 1 Dr. & Sm. 97.
Service of Petition.
As a general rule the petition ought to be served upon all persons whose
interests will in any manner be affected by the order sought to be obtained : Dan.
5th ed. 1764.
Scheme.
If a scheme is directed to be settled, or proceedings directed to be taken !n
chambers upon the petition, the Attorney-Greneral must be served with notice,
and he has a, right to appear upon the subsequent proceedings : Be Hansom, 9
Hare, App. 54 ; Corporation of Ludlow v. Greenhouse, 1 Bli. (N.S.) 1765 ; Att.-
Gen. V. Earl of Stamford, 1 Ph. 737 ; 7 Jur. 359.
The scheme is usually prepared by the petitioner.
Costs apportioned between several Chaeitjes — One Scheme.
Tax the petitioners, and the Attorney-General their costs, charges,
and expenses properly incurred of and relating to the order dated, &c.,
and this application and consequent thereon. Let the taxing master
apportion the said costs, charges and expenses, and the sum of £100
capital money arising from the sale of certain property taken hy the —
railway company between all the ahove-mentioned charities, in propor-
tion to the respective values thereof. Let such costs be raised and paid
by the said trustees out of the charity estates in the proportions so to
be certified. — Liberty to apply. Me Stafford Charities, 26 Beav. 567.
Costs to be raised by Mortgage — Annual Payments on account.
Tax the petitioners, the respondents, and the Attorney-General,
their costs as between solicitor and client of and relating to this
application and consequent thereon as between solicitor and client.
Let the said costs when taxed be raised by mortgage or further charge
of the Lambeth Walcott Charity estate, or so much thereof as shall be
necessary for that purpose, and be paid by the trustees of the said
charity to the several persons entitled thereto, in like manner as
the said trustees are directed to raise and pay the costs, and costs,
charges, and expenses provided for by the order dated, &c. Let the
said costs be also repaid by the said trustees out of the rents of the
said Lambeth Walcott Charity estate by annual payments of £100.
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532 STATUTORY JUEISDICTION.
Let the interest of the money to be so raised by mortgage be kept
down out of the income of the said estate. Let the costs directed
to be taxed by the order dated, &c., be included in the certificate of
taxation to be made under this order. Be Lambeth Charities (L. JJ.),
22 L. J. (N.S.) 958. See complete Order, p. 538.
Charitable TeOsts Acts, 1853 to 1869.
16 & 17 Vict. c. 137 ; 18 & 19 Vict. c. 124 ; 23 & 24 Vict. c. 134;
23 & 24 Vict. c. 136 ; 25 & 26 Vict. c. 112 ; 32 & 33 Vict.
0. 110. ,
Before any suit, petition, or other proceeding (not being an application in which
any person claims any property, or seeks any relief adversely to any charity, and
not being an application in any suit or matter actually pending at the time the
application is made), for obtaining any relief, order, or direction concerning 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 Commissioners an
order or certificate signed by their secretary, authorizing or directing such pro-
ceeding to be taken ; and no proceeding for obtaining any such relief, order, or
direction, 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 : 16 & 17 Vict. c. 137, ss. 17, 18.
This provision applies to suits instituted for the purpose of estabhshing
charities, and not merely to suits respecting charities already established: Braund
V. Earl of Devon, L. E. 3 Ch. 800.
It also extends to charities founded and endowed in England or Wales, although
the revenues are applied abroad : Taylm-'s Trusts, L. R. 2 Ch. 356.
And to charities founded and endowed abroad, if their revenues are applied in
in England : S. 0.
But the sanction of the Charity Commissioners is not required to a petition
which is presented in a pending matter, not dealing with the charity gua charity :
Re Ghislehurst Gollege, 1 Jur. (N.S.) 995 ; Se Listen, 6 De G. M. & G. 184;
Braund v. Ea/rl of Devon, L. R. 3 Ch. 806.
The Act applies to applications made to the Court, although such applications
are made under the authority of special Acts of Parliament : Dan. 5th ed. 1759 ;
Be Bingley School, 2 Drew. 283 ; 18 Jur. 668 ; Waiford Burial Board, 2 Jur.
(N.S.) 1045.
Where a final order has been made and a scheme settled, the matter is no
longer pending within the meaning of the Act, and the sanction of the commis-
sioners must be obtained : Ford's Charity, 3 Drew. 324 ; Be Jarvis's Charity,
1 Dr. & Sm. 97 ; Dan. 5th ed. 1760.
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 time
being exceeds £30, is considered desirable, and such appointment, removal, or
other relief, order, or direction might before this Act be made or given by the
Court of Chancery, or any person authorized in that behalf by the order or certi-
ficate of the Charity Commissioners, or the Attorney-General, may make applica-
tion (without any information, bill, or petition) to the Master of the Rolls or one
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CHARITABLE TRUSTS, ETC., ACTS. 5 £3
of the Vice-Chancellors at chambers for such order, direction, or relief, and the
judge may make such order as might at the passing of the Act be exercised by
the Court of Chancery in a suit regularly instituted, or upon petition : 16 & 17
Vict. 0. 137, s. 28.
But the judge may, if he thinks fit, direct that the proceedings be taken by in-
formation, bill, or petition : Ibid.
No judge of the Court of Chancery has upon any proceeding under this Act
jurisdiction to try or determine the title at law or in equity to any real or personal
estate, or any term or interest therein, as between any charity or the trustee
thereof, and any person holding or claiming such real or 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 : 16 & 17 Vict. c. 137, s. 41.
Where the gross annual income does not exceed £50 the jurisdiction is now
exercisable by the County Court of the district of the charity : 16 & 17 Vict.
c. 137, s. 32, as amended by 23 & 24 Vict. c. 137, s. 11. But the Charity Com-
missioners may direct that the application be made before a judge of the Court of
Chancery, or the Chancellor or Vice-Chancellor of the County. Palatine of Lan-
caster: 16 & 17 Vict. c. 137, a. 35.
The Charity Commissioners may, in case they disapprove of any order or de-
cision of the County Court for the appointment or removal of any trustee of any
charity, or approving of any scheme for regulating the administration of any
charity, submit the same for the decision of a judge of the Court of Chancery :
16 & 17 Vict. c. 137, B. 37.
Wherever it appears to the Charity Commissioners requisite or desirable that
legal proceedings should be instituted by the Attorney-Greneral with respect to
any charity, or the estates, ftinds, property, or affairs thereof, they may certify
the case to him, and the Attorney-General may thereupon proceed either by in-
formation, petition, or application at chambers, as he may think proper : 16 & 17
Vict. c. 137, s. 20.
Where any land, or any term or estate therein, holden upon trust for any
charity, is vested in any persons other than the persons acting in the administra-
tion of it, or where there are no trustees, or the trustees are unwilling to act, or
it is uncertain in whom the land is vested, and in certain other cases therein
mentioned, the Court may order the land, term, or estate to vest in the ofiBcial
trustee of charity lands : 16 & 17 Vict. c. 137, s. 48, as amended by 18 & 19
Vict. c. 124, s. 15.
The Charity Commissioners, upon the application of persons who, under the
43rd section of the 16 & 17 Vict. c. 137, would be authorized to apply to any
judfe for the hke purpose, are empowered to make such effectual orders as have
hitherto been made by a judge at chambers, or by any County Court or District
Court of Bankruptcy, for the appointment or removal of trustees of any charity,
or for the removal of any schoolmaster or mistress or other officer, or relating to
the assurance, transfer, payment, or vesting of any real or personal estate belong-
ing thereto : 23 & 24 Vict. c. 136, s. 2.
The Charity Commissioners may, if they think fit, exercise the jurisdiction
conferred on them by the last-mentioned Act in contentious cases : Se Burnham,
National Schools, L. R. 17 Eq. 241.
And the Court of Chancery will not interfere with the discretion of the Com-
missioners in selecting new trustees, unless in cases of gross miscarriage : S. C.
The Attoiliey-General, or any person authorized by him or by the Commis-
sioners may, within three calendar months after the publication of an order of
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534 STATUTORY JURISDICTION.
the Commissioners appointing or removing a trustee, or relating to the assurance,
transfer, payment, or vesting of any real or personal estate, or establishing a
scheme, present a petition of appeal to the Court of Chancery ; and any school-
master or schoolmistress, or other officer removed by the order of the board, with-
out the concmTence of the trustees or governors, or a majority of them, and
without the approval of a special visitor, if any, of the charity, jnay appeal in like
manner : 23 & 24 Vict. c. 136, s. 8, as amended by 32 & 33 Vict. c. 110, s. 10.
The Court may, upon such petition of appeal, or at any stage of the proceed-
ings, require from the board their reasons for making the order appealed against,
and may remit the same for re-consideration, with or without any declaration
in relation thereto, or may make any substitutive or other order ; and the Court
may make any order respecting the costs, charges, or expenses incident to the
appeal, and may require from any appellant, other than the Attorney-General,
proper security for costs : 23 & 24 Vict. c. 136, s. 8.
The majority of the trustees of any charity, if authorized by the board, may
constitute and maintain any action, suit, petition, or other proceeding, as if they
were the sole trustees of the charity : 32 & 33 Vict. c. 110, s. 13.
And such action, suit, petition, or other proceeding, is not to abate by the
death or removal from office of any of the trustees : 32 & 33 Vict. c. 110, s. 14.
The Board, if they think it desirable, where the gross annual income of the
charity is sufficient to bear the expense, may authorize the employment of skilled
persons to prepare any scheme, order, statement, or other proceeding for the pur-
poses of the Charitable Trusts Acts, 1853 to 1869, with respect to such charity :
32 & 33 Vict. c. 110, s. 9.
No gift or disposition of real or personal estate upon any lawful charitable
trust for the exclusive benefit of Roman Catholics is to be invalidated by reason
that such estate is subjected to any trust or provision deemed to be superstitious
or prohibited by law ; but the Court or judge at chambers may, upon the appli-
cation of the Attorney-General or person authorized by the 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 law-
ful trusts declared 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 to be most just : 23 & 24 Vict. c. 134, s. 1.
In making their apportionment the Court may, by the same or any other order,
establish a scheme for giving effect thereto, and to appoint tmstees for the ad-
ministration of the several portions of such estate, and may vest the estate in the
trustees: Ibid. ; Be Blimdell, 8 Jur. (N.S.) 5 ; 10 W. R. 34.
The Elementary Education Act, 1870.
33 & 34 Vict, c. 75.
" The provisions of the Charitable Trusts Acts, 1853 to 1869, which relate to
the sale, leasing, and exchange of lands belonging to any charity, shall extend to
the sale, leasing, and exchange of the whole or any part of any land or school-
house belonging to a School Board which may not be required by such board,
with this modification, that the Education Department shall for the purposes of
this section be deemed to be substituted in those Acts for the Charity Commis-
sioners": 33 & 34 Vict. c. 75, s. 22.
" The managers of any elementary school in the district of a School Board
may, in manner provided by this Act, make an arrangement with the School,
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CHARITABLE TRUSTS, ETC., ACTS. 585
Board for transferring their school to such School Board, and the School Board
may assent to sxich arrangement": sect. 23. See National Society v. School
Board of London, L. R. 18 Eq. 608.
Enforcing Orders of Charity Commissioners.
If any person refuses or wilfully neglects to comply with any lawful requisi-
tion or order of the commissioners, or destroys or withholds any document
required to be produced or transmitted by him, or to answer any lawful questions
or inquiries, or to attend in obedience to any lawful precept of, or give evidence
before any inspector, or if any person wilfully alters, destroys, withholds, or re-
fuses to produce any document which may be lawfully required to be produced
before any inspector, every person so offending is to be deemed and taken to be
guilty of a contempt of the Court of Chancery, and is liable to be attached and
committed on summary application by the Commissioners to the Court or any
judge thereof ; and may be ordered to pay the costs of and attending such con-
tempt ; and the Court may at any time discharge such person upon such terms
as it may deem just : 16 & 17 Vict. c. 137, s. 14 ; 18 & 19 Vict. c. 124, s. 9 ; 23
& 24 Vict. c. 136, s. 20 ; see Sir Bohert PeeVs School, L. R. 3 Oh. 543.
Charities exempted from Jurisdiction.
• The Charitable Trusts Acts do not extend to the Universities of Oxford,
Cambridge, London, or Durham, or any college or hall in the said Universities of
Oxford, Cambridge, and Durham, or the Colleges of Eton and Winchester, or any
cathedral or collegiate church ; nor to any building registered as a place of meeting
for religious worship, and bona fide used for that purpose ; nor to the Commis-
sioners 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 therevrith wholly maintained by voluntary contributions ; nor to any
bookselling or publishing husiness carried on by or under the direction of any
society wholly or partially exempted from this Act, so far as such business is or
shall .be carried on by means of voluntary contributions only, or the capital or
stock of such business ; and where any charity is maintained partly by voluntary
subscriptions and partly by income arising from any endowment, the provisions of
the Acts with respect to such charity extend and apply to the income from endow-
ment only, to the exclusion of voluntary subscriptions and the application thereof ;
and no direction or bequest unto or in trust for any such charity as last aforesaid
of which no special application or appropriation has been directed or declared by
the donor or testator, and which may legally be applied by the governing or
managino' body of the charity as income in aid of the voluntary subscriptions, is
subject to the provisions of the Acts ; and no portion of any such donation or
bequest as last aforesaid, or of ^ny voluntary subscription which is or may be from
time to time set apart or appropriated and invested by the governing or managing
body of the charity, for the purpose 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 adopted 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 or property of any
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536 STATUTORY JURISDICTION.
missionary or other similar society, or the missionaries, teachers, or officers 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,
collegiate,' chapter, or other schools : 16 & 17 Vict. c. 137, s. 82 ; 18 & 19 Vict.
c. 124, s. 49.
Duly registered and certified places of religious worship are exempted so long
as the same continue to be hona fide used for religious Worship and the record of
the certificate has not been cancelled : 18 & 19 Vict. c. 81, s. 9.
The Commissioners may, however, on the application of the trustees or persons
acting in the administration of any exempted charity, order that the Acts or any
of their provisions shall extend to such charity : 32 & 33 Vict. c. 110, s. 14 ; see
also Sir BdbeH!PeeVs School, L. R. 3 Ch. 543.
Costs of Attoeney-Geneeal.
Where the Attorney-General upon making an application to the Court of
Chancery in the matter of a charity desires an order for taxation and payment of
his costs, charges and expenses relating to the charity, not being costs in the
matter, the summons should contain a statement of the matters in respect of
which payment is desired : Be Dulwich College, L. E. 15 Eq. 294.
The Geammak School and Endowed Schools Acts.
3 & 4 Vict. c. 77 ; 32 & 33 Vict. c. 56 ; 36 & 37 Vict. c. 56.
The Court is empowered whenever any question comes before them concern-
ing the system of education to be established in any grammar school, or the
right of admission to the same, to make decrees and orders extending the system
of education, and extending or restricting the right of admission and to establish
schemes for the application of the revenues of such school : 3 & 4 Vict. c. 77, s. 1.
Where sufficient powers do not exist in respect to discipline the Court of
Chancery may enlarge them, and where no powers, exist the Oourt may create
them : sects. 14, 15.
The Court has also power to appoint the mode of naming masters. And in case
the visitor refuses or neglects to act, the Court may substitute a person to act
pro hoc vice : sect. 16.
Applications under the Grammar School Act are to be heard by petition, ac-
cording to the provisions of the 52 Geo. 2, c. 101, s. 21. But wherever there is
any special visitor appointed by the founder, or other competent authority, oppor-
tunity must be given to him to be heard previously to any order being made :
sect. 1.
The petition should be served on the patron and master of the school: Be
Marlborough School, 7 Jur. 1047.
The Act of 3 & 4 Vict. c. 77, does not extend to the Universities of Oxford and
Cambridge, London or Durham, the Colleges of St. David or St. Bees, or the schools
of Eton, Westminster, Winchester, Harrow, Charter House, Rugby, Merchant
Taylors, St. Paul's, Christ's Hospital, Birmingham,Manchester, Macclesfield, Louth,
or schodls forming part of any cathedral or collegiate church : sect. 24.
The words " grammar school " are not to include schools not endowed, but are
to include all endowed schools which may be grammar schools by reputation, and
all other charitable institutions and trusts so far as the same are fur the purpose of
providing the instruction in the Act mentioned : sect. 25.
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CHARITABLE TRUSTS, ETC., ACTS. f 537
During the continuance of the power of making schemes under the Endowed
Schools Act (32 & 33 Vict. c. 56) the Charity Commissioners or any Court or judge
are not, with respect to any educational endowment which can be dealt with by a
scheme under that Act, to make any scheme or appoint any new trustees without
the consent of the Committee of Council on Education : 32 & 33 Vict. c. 56, s. 52.
Under the present practice the jurisdiction conferred by the 3 & 4 Vict. c. 77,
may be exercised under the Charitable Trusts Acts, and accordingly the Act is
seldom resorted to : Dan. 5th ed. 1780.
The Court will not hear a petition presented under the 3 & 4 Vict. c. 77, for
the purpose of extending the system of education until the master of the school
and patron have been served with notice of the application : Be Marlborough
Qrammar School, 7 Jur. 1047.
The Endowed School Commissioners have jurisdiction to compel a college in a
university to make discovery of matters relating to an endowment of which the
college are trustees, for exhibitions selected from a particular district, and whose
exhibitions are tenable at the university : Be Meyrich Fund, L. B. 13 Eq. 269.
The certificate of the Charity Commissioners that a school is or is not a school
to which the 3rd section of the Endowed Schools Act, 1873, applies, is to be
conclusive evidence of the fact for the purposes of the principal Act (32 & 33
Vict. c. 56) : 36 & 37 Vict. c. 87, s. 3.
The provisions of the 32 & 33 Vict. c. 56, s. 19, are extended as to schools
excepted from provisions as to religion : 36 & 37 Vict. c. 87, s. 7.
And the provisions of the 32 & 33 Vict. c. 56, s. 25, are amended as to new
endowments mixed with old buildings : 36 & 37 Vict. c. 87, s. 8.
The provisions of the 32 & 33 Vict. c. 56, ss. 34 to 36, as to time for objections
to schemes, have been amended by 36 & 37 Vict. c. 87, s. 12, And the pro-
visions of the 32 & 33 Vict. c. 56, s. 39, as to appeal are amended by 36 & 37
Vict. c. 87, s. 14.
The Endowed Schools Act, 1868 (31 & 32 Vict. c. 32), are to continue in force
so long as the power of making schemes under the Endowed Schools Acts, 1869,
1873, and 1874, continue in force, whether in pursuance of the Endowed Schools
Act, 1874, or any Act hereafter to be passed : 38 & 39 Vict. c. 29, s. 2.
Church BuiLDiua Acts Amendment Acts.
8 & 9 Vict. c. 70 ; 14 & 15 Vict. c. 97 ; 34 & 35 Vict. c. 82.
Inquiries as to Gifts, and if Apportionment is proper.
Let an inquiry be made whether tliere are any and vrhat charitable
devisesf bequests, or gifts that have been made and given for the use
of the poor of the parish of West Ham, and whether it is fit and proper,
having regard to the state of the parish, that such devises, bequests,
or gifts should be apportioned between the districts of St. John's, and
the remaining part of the parish under the statute. And in that case.
Let a scheme for such apportionment be settled, &c. Tfissi B.am
Charities, 2 De G. & Sm. 218, 221 ; Seton, 346.
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538 STATUTORY JURISDICTION.
Apportionment of Gifts.
Declare that the devises, bequests, and gifts made or given to or
for the use of the parish of West Ham and hereinafter mentioned are
apportionable between the district chaperly of St. John's, Stratford, the
district chapel of St. Mary's, Plaistow, and the remaining part of the
said parish. Declare that the rent-charges and annuities charged on
real estate given for the use of the said parish and hereinafter men-
tioned, that is to say, the annuities of £ — • given by the wills of —
ought to be apportioned between the district chapelry of St. John's,
Stratford, the district chapelry of St. Mary's, Plaistow, and the remain-
ing part of the said parish, in manner following, that is to say : that
185/480th parts of the said rent-charges or annuities respectively, being
at the rate of 7s. 8^d. in the pound shaU be the share of the said district
chapelry of St. John's, Stratford ; that 66/480th other parts thereof
respectively, being at the rate of 2«. 9d. in the pound, shall be the share
of the said district chapelry of St. Mary's, Plaistow ; and that the other
229/480th parts thereof, being at the rate of 9«. did. in the pound, shall
be the share of the remaining part of the said parish. Declare that the
rents and profits of the hereditaments and real estate devised or held in
trust for the use of the said parish firstly, secondly, and thirdly herein-
after mentioned, that is to say, &c., ought to be respectively appor-
tioned between the said district chapelries and the remaining part of
the said parish, in the same manner and in the same shares as the said
rent-charges have been hereinbefore directed to be apportioned. —
Similar declaration as to dividends of stock held in trust for the parish.
— Declarations apportioning certain rights of nomination to benefits
in the parish funds. — Directions for transfer of trust funds to new
trustees, and declaration that such funds should be held by the trustees
in trust for the education of the poor children of the chapelry district
of St. John's, Stratford, in the principles of the Established Church of
England, and in connection with and according to the plan adopted by
the National Society for promoting the Education of the Poor in the
Principles of the Established Church throughout England and Wales.
— Provisions for the appointment of new trustees in case of vacancies.
— Costs of all parties to be taxed as between solicitor and client and
paid out of income. West Ham Charities (V.-C. K. B.), July 7, 1848.
Similar Order — Costs to he raised hy Sale or Mortgage.
Let so much of the order dated, &c., whereby it is ordered that the
scheme mentioned in the master's report dated, &c., be varied by
striking out the words, " But so that at least half the present number
of pensioners hereby allotted or apportioned to each such district or
chapelry, and the remaining part of the said chapelry respectively, be
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CHARITABLE TRUSTS, ETC., ACTS. 539
from time to time for ever kept on foot ;" and whereby it is ordered,
" that on the determination of each of the forty pensions in the said
report mentioned it should be in the discretion of the respective incum-
bent or ministers and churchwardens of the remaining part of the said
parish of Lambeth, and of the several district parishes or chapelries
respectively to ■whose parish or district such pension so dropping was
thereby allotted or apportioned, to elect another pensioner in the place
of such pensioner whose pension should so drop, or otherwise in such
discretion to apply the amount of any such pension so dropping in
augmentation of the fund thereby allotted to the present schools in the
said report mentioned, or in the maintenance of other schools of the like
nature within the same district parishes or chapelries, or remaining
part of the said parish, and so from time to time as often as any
original or subsequent pension should determine, and if at any time
or times the part of the said pensioner's fund which should have been
so applied for the augmentation or maintenance of schools should in the
like discretion be considered not to be required for such last-mentioned
purposes, then that the same should untH again changed be applied in
payment of such pension as aforesaid " be discharged. Let the words
" But so that at least half," &o., be restored. Tax the petitioners, the
respondents, and the Attorney-General their costs as between solicitor
and client of and relating to this application and consequent thereon.
Let the said costs when taxed be raised by mortgage or further charge
of the Lambeth Walcott Charity Estate, or so much thereof as shall be
necessary for that purpose, and be paid by the trustees of the said
charity to the several parties entitled thereto in like manner as the
said trustees are directed to raise and pay the costs, and costs, charges,
and expenses provided for by the order dated, &c. Let the said costs
of this application and consequent thereon be also repaid by the said
trustees out of the rents of the said Lambeth Walcott Charity Estate
by annual payments of £100. Let the interest of the money to be so
raised by mortgage be kept down out of the income of the said estate.
Let the costs directed to be taxed by the order dated, &c., be included
in the certificate of taxation to be made under this order. Be Lambeth
Charities (L. JJ.), 22 L. J. (N.S.) 958.
Church Building Acts Amendment Acts.
The Court of Chancery has power upon a petition presented under the 52
Q-eo. 3, c. 101, to apportion between the parishes or districts to be created under
the Church Building Acts, and the remaining 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 place, or the produce thereof ;
and to direct that the apportioned part shall be distributed by the iacumbent or
spiritual person serving the church, or by the churchwardens of the separate
parish or district, either jointly or severally ; and to apportion any debts or
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540 STATUTORY JUEISDICTION.
charges which may have been before the period of apportionment charged upon
the credit of any church rates in such parish or place : 8 & 9 Vict. c. 70, s. 22.
The costs are to be in the discretion of the Court ; and the 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 or paid, or as the
Court may direct : Ibid.
When any new securities have been given the Court may order new securities
to be given for the apportioned debts by such persons and bodies as the Court
may direct : Ibid.
Under this Act the Court is bound to act if called upon, although no complaint
is made of the mode in which the distribution of gifts has been made since the
division into districts : West Ham Charities, 2 De Q. & Sm. 218 ; Orders, pp.
537, 538.
And to apportion gifts made specifically to a particular division of a parish,
part of which has been formed into a chapelry district : S. C.
The Court has a discretion to be exercised whether the charities within the Act.
are to be apportioned or not. And in exercising that discretion it will guided by
the consideration whether the administration of the charity is ^prejudicially affected
by division into districts : Ex parte Incumbent of Brompton, 5 De G. & Sm. 626.
Where there had been devised and bequeathed for the benefit of the poor
various rent-charges, sums of money, and pieces of land, some for the benefit of
the poor of the parish generally, others for the benefit of the poor of different
wards, the apportionment was directed to be made according to the gross popu-
lation of the distiicts : West Ham Charities, 2 De G. & Sm. 218.
In apportioning charitable property under this Act regard must be had to the
primary purpose of the testator: Be Lambeth Charities, 22 L. J. (N.S.) 959;.
Order, p. 538.
Where under the provisions of the 6 & 7 Vict. c. 37, a district has become a
new parish for ecclesiastical purposes there is no jurisdiction in the Court to
apportion under the 8 & 9 Vict. c. 70, the charities of such parish : Att.-Qen. v.
Lowe, 23 Beav. 499.
Where the income of a charitable fund has been given for the use and repairs
of the parish church, and the parish is subsequently divided, the charity property
is not applicable to the support of a district chm-ch and new district assigned
under the provisions of the Church Building Act : Ee Church Estate, Wands-
worth, 18 W. B. 1101 ; affirmed, 19 W. E. 456.
The Charity Oonmiissioners have- a power of apportioning parochial charities in
all cases where the gross annual income does not for the time being exceed £30 :
18 & 19 Vict. c. 124, ss. 10, 11.
The Bueial Acts, 1852 to 1871.
15 & 16 Vict. c. 85; 16 & 17 Vict. c. 134; 17 & 18 Vict. c. 87;
18 & 19 Vict. c. 128 ; 20 & 21 Vicr. c. 81 ; 22 Vicr. c. 1 ; 23 & 24
Vict. c. 64 ; 25 & 26 Vict. c. 100 ; 34 & 35 Viot. c. 33.
Burial boards, with the approval of the vestry and of the guardians of the poor
of the parish (if any) and of the Poor Law Board, may appropriate for the pur-
poses of a burial ground for such parish, either alone or jointly with any other
parish, any land vested in such guardians or in the churchwardens and overseers
of the parish, or in any trustees or others, for the general benefit of the parish or
any specific charity : 15 & 16 Vict. c. 85, s. 29.
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CHARITABLE TRUSTS, ETC., ACTS. 541
But where any land so taken and appropriated shall be subject to any chari-
table use, the land shall be taken on such conditions only as the Court of
Chancery, in the exercise of its jurisdiction over charitable trusts, shall appoint
and direct : Ibid.
The provisions of the 15 & 16 Vict. c. 85, from sects. 10 to 42 inclusive, and
in sects. 44, 50, 51, and 52, of that Act, are extended to parishes not in the
metropolis : 16 & 17 Vict. c. 134, s. 7.
The sanction of the Charity Commissioners must be obtained to applications
made under these Acts, according to the provisions of the Charitable Trusts Act,
1853 (16 & 17 Vict. c. 137) : WatfwA Burial Board, 2 Jur. (N.S.) 1045.
Where land proposed to be taken by a burial board is charity land belonging
to the parish, held upon trust for objects within the parish, but not for general
parish purposes, some price must be given for the land : lie Egham Burial Board,
3 Jur. (N.S.) 957.
Municipal Corporations Acts.
5 & 6 Will. 4, c. 76.
Declaration pf Bights — Conveyance hy Trustees appointed under the Act —
Transfer into Court — Costs.
It appearing that the directions of the Court of Exchequer dated,
&c., have been neglected and not performed according to the said
decrees, and that the stock in the decree mentioned has been misem-
ployed contrary to the true intent and meaning of the said decree, and
that such neglect and misemployment have continued for the space of
one year and upwards, Declare that the Pits, as governors of Christ's
Hospital, have become and are entitled to the whole of the common
stock in the decree mentioned and the lands purchased pursuant thereto,
and the house and garden therein mentioned, and that the same re-
spectively ought to be paid and conveyed to the Pits to the use of
Christ's Hospital. — Costs of Defts, the Corporation of Beading, and of
J. J. B. their town clerk, to be taxed as between solicitor and client and
paid by the Pits. — The Defts the corporation upon payment of such
costs to convey and assure the house, garden, and hereditaments to the
Pits as governors of Christ's Hospital, to the use of the hospital, to be
by them employed and bestowed in the relief and education of the
poor children of the hospital, the conveyance to be settled, &c. — And
it appearing that the sums of £6388 and £1611 Bank £3 per Cent.
Annuities in the pleadings mentioned to be standing in the names of the
Defts, the trustees appointed in the place of the corporation of Beading,
have been purchased with, or have arisen from, the rents, income, and
annual produce of the charity estates and property hereinbefore
directed to be conveyed and the accumulations thereof, order the
Defts, the trustees, to transfer into Court the £6888 and £1611 Bank
Annuities. — Befer to the Taxing Master to tax the costs of the Attorney-
General and trustees as between solicitor and client.— Sell so much
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542 STATUTOET JURISDICTION.
of the said Bank Annuities as •when transferred will raise the said
costs, and order residue of Bank Annuities to be transferred to the
Pits as governors of Christ's Hospital. Christ's Hospital v. Grainger,
16 Sim. 83.
Municipal Corpoeations Acts.
In erery borough in which the body corporate, or any one or more of the
members of such body corporate, in his or their corporate capacity, stand solely
or together with any person or persons elected solely by such body corporate, or
solely by any particular member, class, or description of members of such body
corporate, seised or possessed of any hereditaments, moneys, chattels, or securities
for money upon any trust for the benefit of any charitable uses, all the estate and
powers of such body corporate, or of such members of such body corporate, are to
continue in the persons who at the time of passing the Act are such trustees, not-
withstanding that they may have ceased to hold office, until the 1st of August,
1836, or Parliament shall otherwise order : 5 & 6 Will. 4, c. 76, s. 71.
But if any vacancy should be occasioned among the charitable trustees for any
borough before the 1st of August, 1836, the Lord Chancellor has power upon
petition in a summary way to appoint another trustee, and every person so
appointed shall be a trustee until the time at which the person in Ithe room of
whom he was chosen would regularly have ceased to be a trustee. If Parliament
should not otherwise direct on or before the 1st of August, 1836, the Lord
Chancellor shall make such orders as he should see fit for the administration,
subject to such charitable uses or trusts as aforesaid, of such trust estates : 5 & 6
Will. 4,0. 76, s. 7].
As Parliament has not otherwise directed, the powers conferred by the Act
upon the Lord Chancellor still continue : Dan. 5th ed. 1782.
Property appropriated by a municipal corporation to the maintenance of
lecturers to preach before the corporation, is not property held by the corpora-
tion upon a charitable trust within the meaning of the 71st section of the Act :
He Oxford Charities, 3 My. & Cr. 239.
In the appointment under the Act of trustees of the charity estates,, persons
who are members of the corporation are not ineligible as trustees : Be Ludlow
Charities, 3 My. & Cr. 262. See also Christ's Hospital v. Grainger, 16 Sim.
83; Order, supra; Att.-Qen. v. Corporation of Exeter, 2 De G. M. & G. 507,
cited in Dan. 5th ed. 1782.
The trustees appointed under the Act are not mere depositaries of the legal
estate in the charity property, but are invested by their appointment with all the
rights and powers which formerly belonged to the corporation or corporate
officers for whom they are substituted : Att.-Qen. v. Ludlow, 2 Phil. 685.
Whenever the legal estate in any lands of which a body corporate, subject to
the provisions of the 5 & 6 Will. 4, c. 76, was a trustee for charitable ^purposes,
has not since that Act been duly vested in the trustees appointed under its pro-
visions, or their survivors, or otherwise lawfully disposed of by the body corporate,
such legal estate shall immediately after the 20th of August, 1853, and without
any conveyance thereof, vest in the trustees so appointed, or their survivors, ac-
cording to the respective estates and interests therein, and subject to the charges
and upon the trusts then affecting the same : 16 & 17 Vict. c. 137, s. 65.
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
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CHARITABLE TRUSTS, ETC., ACTS. 543
persons who, after such death, resignation, or removal and appointment of new
trustees, shall be trustees for the time being, without any conveyance or as-
surance whatever : Ibid.
The petition should be presented under Sir Samuel Eomilly's Act, 52 Geo, 3,
c. 101, as well as under the Mui>icipal Corporations Act : see 5 & 6 Will. 4, c. 76.
No order for filling up vacancies in the number of trustees will be made unless
the Court is satisfied that the existing number of trustees is practically insufficient :
Dan. 4th ed. 1783 ; Re Worcester Charities, 2 Phil. 284.
Section 4 of "The Municipal Corporations Act, 1859 " (16 & 17 Vict. c. 137),
is repealed : 34 & 85 Vict. c. 67.
Ineolmektt of Deeds.
Charitable Uses Acts.
Upon the application, &o., and Tipon reading an affidavit of — , Let
the indenture dated, &c., made between, &o., he inroUed in this Court
within six calendar months from the date of this order, notwithstanding
the time limited by law for that purpose has expired.
Chaeitable Uses Acts.
Where the charitable uses of any deed of conveyance of lands for charitable
uses are declared by any separate deed, the deed of conveyance is to be void unless
the separate deed be inrolled within six months from the making or perfecting it
in the Court of Chancery : 24 Vict. c. 9, s. 2.
No past conveyance or assurance of land for any charitable uses made upon
valuable consideration is to be void for any reason if made to take effect in pos-
session, or inrolled within twelve months from the 17th of May, 1861 : 24 Vict.
c. 9, s. 3.
The time limited for the inrolment of these past deeds and assurances has
been extended by subsequent Acts.
Where it is impossible to inrbl the original deed creating a chariiiable trust by
reason of the same having been lost or destroyed by time or accident, but the
trusts of the charity sufficiently appear by some subsequent deed appointing new
trustees o# reciting the trusts created by the original deed, the Court of Chancery
may upon the application by summons of any trustee or other person interested
order the inrolment of such subsequent deed. And such inrolment is to have
the same force and effect as the inrolment of the original deed : 27 & 28 Vict.
c. 13, s. 3.
Any trustee, governor, director, or manager of any charity, or other person in-
terested in any charitable trust, may by summons in a summary way, and without
service thereof, apply to the Court for an order authorizing the inrolment of any
deed or instrument relating to any charitable trust where such deed or instrument
has not been inrolled within the time limited by law ; or (where such deed or
instrument has been lost or destroyed by time or accident and the trusts suffi-
ciently appear by some subsequent deed) : 29 & 30 Vict. o. 57, s. 1.
And if the Court is satisfied by affidavit or otherwise that such deed or instrument
was made londflde for full and valuable consideration, and the omission to inrol
arose from ignorance or inadvertence, or from the destruction of the deed by time
or accident, the Court may authorize the inrolment, and the same shall thereupon
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544 STATUTORY JURISDICTION.
be iiirolled accordingly within six calendar months from the date of the order, and
no acknowledgment shall be necessary prior to the inrolment : 29 & 30 Vict,
c. 57, s. 2.
The last-mentioned Act is not to apply to any deed or instrument as to which
any action or proceeding shall be pending for setting the same aside or asserting
any right founded on its invalidity : 29 & 30 Vict. c. 57, s. 4.
By a subsequent Act, if the Clerk of Inrolments in Chancery for the time
being shall be satisfied by affidavit or otherwise that the deed, &c., conveying or
charging the hereditaments for charitable uses, was made really and hm&fide for
valuable consideration, &c., and that at the time of the application to the said
Clerk of Inrolments possession or enjoyment is held under such deed, &c., and
that the omission to inrol the same in proper time has arisen from ignorance or
inadvertence, or from the destruction thereof by time or accident, it shall be lawful
for the said Clerk of Inrolments to inrol the deed, &c. : 35 & 36 Vict. c. 24.
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CHAPTER XXXII.
AEBITKATION.
9 & 10 Will. 3, c. 15 ; 17 & 18 Vict. c. 125.
Agreement or Siibmission made an Order of Court.
Upon motion, &o., hj counsel for — , and upon producing articles of
agreement dated, &o., under the respective hands (and seals) of [parties
executing], [or, a submission to arbitration, dated, &o., and signed by
the above-named, &c.J, as by affidavit of — , now produced and read,
appears. Let (by consent) the said agreement [or, submission to arbi-
tration] be made an order of this Court, to be observed and performed
by all parties, according to the tenor and true meaning thereof. Be
Haigh (V.-C. K.), Nov. 20, 1866 ; Seton, 1123.
Agreement under Lands Glavses Ad.
Upon motion, &c., Let the submission to arbitration contained in
the following documents : namely, a notice dated the 28th of January,
1874, given by T. E. H. to the Great Eastern Eailway Company ; an
appointment in vrriting dated the 25th of February, 1874, of J. S.,
as arbitrator on behalf of the said T. E. H. ; and an appointment in
writing dated the 24th of April, 1874, signed by the said arbitrators
of H. E. M. as their umpire, be made an order of this Court, to be
observed and performed by all parties, according to the tenor and true
meaning thereof. Ex parte Harper, L. E. 18 Eq. 539.
Award wade an Order of Court.
Upon motion, &c., by counsel for — [and upon hearing counsel
for — ], and upon reading an award dated, &c., under the respective
hands and seals of — , and — ; an affidavit of — , verifying the exe-
cution of the said award [and an affidavit of service of notice of this
motion on — ], Let the said award be made an order of this Court, to
be observed and performed by all parties thereto, according to the
true tenor and meaning theteof.
Reference of Suit — Single Arbitrator.
By consent, Let all matters in difference in this action between the
parties be referred to the arbitrament of — , who is to make his award
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546 STATUTORY JUEISDICTION.
in writing on or before the — day of — , or such farther day as the
Baid A. shall appoint. And by the like consent, Let all deeds, books,
and papers in the custody or power of either of the parties relating
to the matters in question be produced before the said arbitrator as he
shall direct, to be ascertained by the oaths of the respective parties
producing the same. And the parties and their witnesses, being first
sworn, are to be examined as the said arbitrator shall direct ; and by
the like consent, the costs of this action, and of this application, and
of this reference are to be costs in the discretion of the said arbi-
trator ; and by the like consent, no action is to be brought by either
of the parties against the said A. for any matter or thing he shall do
in, about, or touching any of the matters hereby referred to him ;
And by the like consent the said arbitrator is to have power from time
to time to enlarge the time for making his award as he shall think fit.
Seference — Two Arbitrators — Vm/pire.
Let all matters in difference in this action be referred to B., of,
&c., a person for this purpose nominated by the Pit, and of C, of,
&c., a person for this purpose nominated by the Deft, or in case of
their not agreeing to an award, then to the arbitraiaent of such
umpire as shall be appointed by them the said B. and C, in manner
hereinafter mentioned ; and the said arbitrators are to make their
award in writing on or before the — day of — , or on or before such
further day as they the said arbitrators shall from time to time by
any writing under their hands appoint ; and in case of the said arbi-
trators not agreeing in an award, the said umpire is to make his
award in writing within the period hereinafter mentioned, that is to
say, within three calendar months after the expiration of the time
within which the power of the arbitrators to make an award shall have
ceased, or within such extended time after the expiration of the said
period of three calendar months as the said umpire shall from time to
time by any writing under his hand appoint. Let all deeds, &o.,
be produced, &c. And the costs of this suit and of this application, are
to be in the discretion of the said arbitrators and umpire, or of such
of them as shall award upon the matters in difference. And [no bill
is to be filed, and] no action is to be brought by either of the parties
against the said B. and C. for any matter or thing they shall do in or
about or touching any of the matters hereby referred to them. And
before the said arbitrators shall enter upon the matters referred to
them they are by writing under their hands to appoint some person
approved of by them to be such umpire as aforesaid ; and such umpire
shall by writing under his hand signify his acceptance of such
appointment. — Libei-ty to apply. Edwards v. Edwards (V.-O. S.), July
28, 1856 ; Seton; 1122.
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ARBITRATION. 547
Similar Be/erence — Costs reserved-^Stay of Proceedings.
Directions for reference to two arbitrators and umpire as in preced-
ing order, and for production of documents, &c., and prohibition from
action against arbitrators. And the said arbitrators and umpire are to
have power from time to time to enlarge the period for making their
award as they shall think fit. And before such arbitrators shall enter
upon the matters referred to them, they are by writing under their
hands to appoint some person approved of by them to be such umpire
as aforesaid. And such umpire shall by writing under his hand
signify his acceptance of such appointment. Costs of cause reserved
until after arbitrators or umpire have made an award. — Let in the
meantime all further proceedings in this cause be stayed. — Liberty to
apply. Newton v. Taylor (M. E.), April 23, 1874.
Keference to Arbitration.
Parties may agree that their submission of the suit to the award of any person
be made a rule of any Court of Record : 9 & 10 Will. 3, c. 15.
The authority of aa arbitrator appointed by the Court, or under an agreement
that the submission be made a rule of Court, is irrevocable, except by leave of
the Court; and the arbitrator is bound to proceed with the reference notwith-
standing any such revocation, and to make his award, although the person making
the revocation does not afterwards attend the reference : 3 & 4 Will. 4, c. 42,
s. 39.
" Every agreement or submission to arbitration by consent, whether by deed
or instrument in writing not under seal, may be made a rule of any one of the
superior Courts of Law or Equity at Westminster on the application of any party
thereto, unless such agreement or submission contain words purporting that the
parties intend that it should not be made a rule of Court ; and if in any such
agreement or submission it is provided that the same shall or may be made a
rule of one in particular of such superior Courts, it may be made a rule of that
Court only " : 17 & 18 Vict. c. 125, s. 17 (Com. Law Procedure Act).
" And if, when there is no such provision, a case be stated in the award for the
opinion of one of the superior Courts, and such Court be specified in the award,
and the documents authorizing the reference have not, before the publication of
the award to the parties, been made a, rule of Court, such document may Ije
made a rule only of the Court specified in the award " : Ibid.
'•And where in any case the document authorizing the reference is, or has
been, made a rule or order of any one of such superior Courts, no other of such
Courts shall have any jurisdiction to entertain any motion respecting the
arbitration or award " : Ibid.
The apphcation to make the agreement or submission a rule of Court must be
on notice, unless the submission provides that either party may make it an order
of the Court without notice to the other party.
The submission is filed in the Report OfiSoe, and a note of the filing made on
the order before the order is passed : Cons. Ord. 23, rule 23.
Neither the want of an appeal, nor the inability of the arbitrator to grant an
. 2 N 2
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548 STATUTORY JURISDICTION.
injunction, forms a valid objection to a reference under an agreement to refer :
WiUesford v. Watson, L. R. 14 Eq. 572 ; R. 0. L. E. 8 Ch. 473.
An agreement to submit the affairs of a partnership to arbitration, and that
the submission shall be made a rule of a Court of Common Law, cannot be
pleaded in bar to a suit in equity seeking discovery, complaining of the pit being
sued in actions, and praying for a receiver ; although arbitrators have been
appointed before the bill is filed, and the submission has since been made an order
of the Court : CooJce v. Cooke, L. B. 4 Eq. 77.
The jurisdiction of the superior Courts in such a case is not ousted by the
provisions of the Common Law Procedure Act : S. C.
If the agreement to submit also contains a covenant not to take proceedings at
law or in equity, whether in that case the submission may be pleaded in bar of
any proceedings in any superior Court except that before which the reference is
pending, quiere: S. C.
But where there has been an agreement to refer under the Railway Companies
Arbitration Act, 1859, the jurisdiction of the Court is taken away : Watford
and Eickmansworth By. Co. v. London and North Western My. Co., L. E. 8 Eq.
231.
And where, in a reference under the Arbitration Act of Will. 3, an award has
been made, the jurisdiction in the matter of the award of every superior Court,
except that before which the reference is pending, is excluded : Cooke v. Cooke,
L. E. 4 Eq. 77.
A submission to arbitration under the Lands Clauses Act, 1845, is not a " sub-
mission by consent " within the meaning of the Common Law Procedure Act,
1854, B. 17 : Be Harper, L. R. 20 Eq. 39, explaining Be Harper, L. R. 18 Eq.
539. See also Be Newbold, 14 C. B. (N.S.) 405 ; Shades v. Airedale Drainage
Commissioners, L. R. 9 0. P. 508.
Where a submission is made a rule of Court under sect. 36 of the Lands
Clauses Act, the Court has the same jurisdiction as in the case of submissions
under the 9 & 10 Will. 3, c. 15 : Be Harper, L. R. 20 Eq. 39.
' Stay of PEOCKiDiNas.
" Whenever the parties to any deed or instrument in writing to be hereafter
made or executed, or any of them, shall agree that any then existing or future
differences between them, or any of them, shall be referred to arbitration, and any
one or more of the parties so agreeing, or any person or persons claiming through
or under him or them, shall nevertheless commence any action at law or suit in
equity against the other party or parties, or any of them, or against any person
or persons claiming through or under him or them in respect of the matters so
agreed to be referred, or any of them, it shall be lawful for the Court in which
th^ action or suit is brought, or a judge thereof, on application by the deft or defts,
or any of them, after appearance and before plea or answer, upon being satisfied
that no sufBoient reason exists why such matters cannot be, or ought not to be, re-
ferred to arbitration according to such agreement as aforesaid, and that the deft was,
at the time of the bringing of such action or suit, and stilL is, ready and willing to
join and concur in all acts necessary and proper for causing such matters so to be
decided by arbitration, to make a rule or order slaying all proceedings in such
action or suit, on such terms as to costs and otherwise as to such Court or judge
may seem fit : Provided always, that such rule or order may at any time after-
wards be discharged or varied as justice may require " : 17 & 18 Vict. c. 125, a. 11.
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ABBITBATION. 543
The Court has no jurisdiction to stay the proceedings unless the instrument on
which the action is brought contains an agreement to refer the differences to
arbitration : Blyihe v. Lafone, 5 Jur. (N.S.) 364.
The proceedings will be stayed wherever the application is made lonafide by a
party who has always been ready to refer, and there are matters in dispute within
the meaning of the agreement : Dan. 5th ed. 1907 ; Bussdl v. Pellegrini, 6 E. &
B. 1020; 3 Jur. (N.S.) 183, 185; Hirsch v. Im Thurn,4: C. B. (N.S.) 569;
4 Jur. (N.S.) 587 ; WickhamY. H(wdy, 5 Jur. (N.S.) 871, Ex. ; Lury v. Pewrsm,
1 0. B. (N.S.) 689 ; Wheatley v. Westminster Brymbo Colliery Co., 2 Dr. & Sm.
347 ; 11 Jur. (N.S.) 232 ; Willesford v. Watsm, L. E. 14 Bq. 572 ; S. 0., L. E.
8 Ch. 473 ; GilUtt v. Thornton, L. E. 19 Eq. 599.
And the Court has left it to the arbitrators to decide whether the matters in
dispute between the parties were within the agreement to refer ; Wellesford v.
Watson, L. E. 14 Eq. 572; S. C, L. E. 8 Ch. 473.
Any deft has the right to apply for stay of proceedings under sect. 11 : S. C.
EVIDENCB OF AeBITEATORS.
The Court will admit the evidence of arbitrators in explanation of their awards*
And where they have admitted by afBdavit the mistakes made, the Court has
power to send back the matter for reconsideration or to set award aside : Eobson
V. Bailston, 1 B. & A. 723 ; Hutchinson v. SMpperton, 13 Q. B. 955 ; Mills v.
Bowyer^ Co., 3 K. & J. 66 ; Re Dwre Valley By. Co., L. E. 6 Eq. 429.
Failure of Parties, or Arbitrators, oe Eeferemce.
" If in any case of arbitration the document authorizing the reference provides
that the reference shall be to a single arbitrator, and all the parties do not, after
difficulties have arisen, concur in the appointment of an arbitrator, or if any ap-
pointed arbitrator refuse to act, or become incapable of acting, or die, and the
terms of such document do not shew that it was intended that such vacancy
should not be supplied, and the parties do not concur in appointing a new one ; or
if where the parties or two arbitrators are at liberty to appoint an umpire ov third
arbitrator — such parties or arbitrators do not appoint an umpire or third arbitrator
or if any appointed umpire or third arbitrator refuse to act, or become incapable
of acting, or die, and the terms of the document authorizing the reference do not
shew that it was intended that such a vacancy should not be supplied, and the
parties or arbitrators respectively do not appoint a new one — then in every such
instance any party may serve the remaining parties or the arbitrators, as the case
may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator
respectively " : 17 & 18 Vict. c. 125, s. 12,
" And if within seven clear days after such notice shall have been served no
arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any
judge of any of the superior Courts of Law, or Equity at Westminster, upon
summons to be taken out by the party having served such notice as. aforesaid, to
appoint an arbitrator, umpire, or third arbitrator, as the case may be ; and such
arbitrator, umpire, or third arbitrator respectively shall have the like power to act
in the reference, and make an award, as if he had been appointed by consent of all
parties " : Ibid.
This section does not apply where the reference is to three arbitrators, one to
be appointed by each of the parties, and the third to be chosen by the two so
appointed " : Gumm v. Hallett, L. E. 14 Bq. 555,
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550 STATUTORY JURISDICTION.
" Where the reference is, or is intended to be, to two arbitrators, one appointed
by each party, it shall be lawful for either party, in case of the death, refusal to
act, or incapacity of any arbitrator appointed by him, to substitute a new arbi-
trator, unless the document authorizing the reference shew that it was intended
that the vacancy should not be supplied " : 17 & 18 Vict. c. 125, s. 1 3.
" And if on such a reference one party fail to appoint an arbitrator, either
originally or by way of substitution as aforesaid, for seven clear days after the
other party shall have appointed an arbitrator, and shall have served the party so
failing to appoint with notice in writing to make the appointment, the party who
has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator
in the reference, and an award made by him shall be binding on both parties as
if the appointment had been by consent ; provided, however, that the Court or a
judge may revoke such appointment on such terms as shall seem just" : Ibid.
" Where the reference is to two arbitrators, and the terms of the document
authorizing it do not shew that it was intended that there should not be an
umpire, or provide otherwise for the -appointment of an umpire, the two arbitrators
may appoint an umpire at any time within the period during which they have
power to make an award, unless they be called upon by notice as aforesaid to
make the appointment sooner " : 17 & 18 Vict. c. 125, s. 14.
Where a suit in equity is referred and the reference proves abortive, the suit
proceeds as if there had been no such reference : Cooh v. Jackson, 6 Ves. 11 ;
Crawshay v. Collins, 3 Sw. 90.
And the rule seems to have been similar at common law : see Russell on
Arbitration, 4th ed. 699.
And where the reference fails through the fault of a party to the submission
equity has interfered and enforced the contract against him : Morse v. Merest,
6 Mad. 26.
But where the arbitrators are to decide that which is the essence of the con-
tract, and they fail to do so, and there has been no part performance, neither the
submission nor the contract can be carried out ia equity : Russell on Arbitration,
4th ed. 700 ; see also Cooth v, Jackson, 6 Ves. 11 ; Earl of Damley v. London,
Chatham, and Dover By. Co., 3 De G. J. & S. 24 ; S. C, L. R. 2 H. L. 43.
But equity has upon failure of the reference enforced an agreement which was
to sell at a fair valuation : Milnes v. Oery, 14 Ves. 400.
And if the matter of the submission was not of the essence of the contract, or,
if there had been a part performance of it, equity has enforced it notwithstanding
the failure of the reference : Cheslyn v. Dolby, 2 Y. & C. 170 ; Oourlay v. Duke
of Somerset, 19 Ves. 429.
Award — Time enlarged.
Upon motion, &c. and npon reading, &c., Let the time for A. and B.,
the arhitrators named in the order dated, &o. [the order of reference],
for making their award pursuant to the said order, be enlarged until
the — day of — .
" The arbitrator acting under any such document or compulsory order of refer-
ence as aforesaid, or under any order referring the award back, shall make his
award under his hand and (unless such document or order respectively shall
contain a different limit of time) within three months after he shall have been
appointed, and shall have entered on the reference, or shall have been called
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AEBITRATION. 551
upon to act by a notice in writing from any party, but the parties may by con-
sent in writing enlarge the term for making the award ; and it shall be lawful
for the superior Court of which such submission, document, or order is or may be
made a rule or order, or for any judge thereof, for good cause, to be stated in the
rule or order for enlargement, from time to time to enlarge the time for making
the award " : 17 & 18 Vict. o. 125, s. 15.
" And if no period be stated for the enlargement in such consent or order for
enlargement, it shall be deemed to be an enlargement for one month " : Ibid
"And in any case where an umpire shall have been appointed it shall be
lawful for him to enter upon the reference in lieu of the arbitrators, if the latter
shall have allowed their time or their extended time to expire without making
an award, or shall have delivered to any party or to the umpire a notice in writing
stating that they cannot agree " : Ibid.
The order enlarging the time may be made after the expiration of the time
for making the award: Watsons. Bennett, 6 Jur. (N.S.) 637 ; 8 W. R. 612; Be
Warner and Powell, L. R. 3 Eq. 261 ; Be Dare Valley By. Co., L. E. 4 Ch. 554.
Award remitted.
Let it be referred back to J. D., J. K., and T. W., the umpire and
referees, or any two of them, to reconsider and redetermine the several
matters referred to them for their determination by the order dated
the — day of — . Let the further consideration of the costs of this
application be reserved until after the said umpire and referees, or
any two of them, shall have made their further award. — Liberty to
apply. Mais V. Bowyers' Co. (V.-C. W.), 3 K. & J. 66.
Similar Order— r-Undertdking^
The applicants by their counsel undertaking not to make any claim
beyond the sum of 6«. for damage done to the surface of the land
taken and purchased by the Dare Valley Eailway Company, Let it be
referred back to the said J. 0. (the umpire), to reconsider and rede-
termine the matters referred to him by the order dated the — day
of — . Be Dare Valley Bailway Company (V.-C. G.), L. E. 6 Eq. 429.
" In any case where a reference shall be made to arbitration as aforesaid the
Court or a judge shall have power at any time, and from time to time, to remit
the matters referred, or any or either of them, to the reconsideration and redeter-
mination of the said arbitrator, upon such terms as to costs and otherwise as to
the said Court or judge may seem proper ": 17 & 18 Vict. c. 125, s. 8.
The object of this section was where any error, formal or otherwise, had
occurred which would vitiate the award, to enable the Court to send it back, if
they thought fit, to the arbitrator to corrfect such error, instead of setting the
award wholly aside : Mills v. Bowyers' Co., 3 K. & J. 66.
The 8th section of the 17 & 18 Vict. c. 125, does not authorize the Court to
remit the award on any ground except such as before the statute would have
induced the Court to set aside the award or treat it as a nullity : S. C.
The fact that the submission contains a clause empowering the Court to refer
back the award in case of a motion to sot the award aside, does not exclude the
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552 STATUTOEY JURISDICTION. •
general power to remit the award, although no motion be made to set it aside ;
Morris v. Morris, 6 E. & B. 383 ; S. C, 25 L. J. (Q.B.) 261 ; cited in Eussell,
445.
And where the award is bad on its face, tiot being sufficiently final or certain,
the award will be remitted : S. 0. ; Se Tidiwell, 33 Beav. 213 ; 10 Jur. (N.S.)
143.
So, also, where although good on its face it is invalid : Awning v. Ea/rtley, 27
L. J. (Ex.) 145.
An arbitrator having signed his award is functui officio, and cannot alter the
slightest error in it. The proper course where the error is technical or trivial is
to obtain an order to refer the award back to the arbitrator : Ward v. Dean,
3 B. & Ad. 234; Re Dare Valley, L. R. 6 Eq. 429 ; Mordue v. Palmer, L. E.
6 Ch. 22.
Where the arbitrator himself admits a mistake of law or fact, the case may
be remitted to him : Mills v. The Bowyers' Co., 3 K. & J. 66 ; Flynn v. Bdbert-
son, 4 0. P. 324; Lochwood v. Smith, 10 W. R. 628.
But an award will not be sent back to the arbitrator on the ground of mistake
either of law or fact, except where the arbitrator himself admits the mistake :
Lancaster v. Eemington, 4 Ad. & E. 345 ; Hodgkinson v. Fernie, 3 0. B. (N.S.)
189 ; 26 L. J. (O.P.) 217 ; Dumn v. Blahe, L. E. 10 C. P. 388.
Award set aside.
Let the award dated the — day of — , made by D, G., of — , &o.,
pursuant to the' order dated, &c., be set aside and discharged.
Award under Lands Clauses Consolidation Act set aside — Order Nisi.
Upon motion, &c., by counsel for B. V. E., it was alleged that by an
order made in these matters dated, &c., it was upon production of
certain submissions to arbitration dated, &c., ordered that the said
submissions should be made an order of this Court. That — made
his award in writing dated, &o., and the said B. V. E. is ad-
vised that the same ought to be set aside on the following grounds
[stating thern]. It was therefore prayed that the said South Devon
Eailway Company might on the 20th January next shew cause why
the said award should not be set aside. Whereupon, and upon read-
ing the said order, the said award, and the copy memorandum thereto
annexed, and an affidavit of, &c., Let the said award be set aside unless
the said South Devon Eailway Company do on or before the 27th
January next shew unto this Court good cause to the contrary. Elliot
V. South Devon Railway Company, 2 De G. & Sm. 17.
AWAED SET ASIDE.
Under the recent practice, if the reference had been by order of the Court of
Chancery made in a suit in that Court, the proper mode of impeaching the
award has been by motion supported by affidavits : Crawshay v. Collins, 3 Sw.
90 ; Dick v. Milligan, 2 Ves. Jun. 23.
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AEBITEATION. 553
And on a reference under the 9 & 10 Will. 3, o. 15, where the submission pro-
vided for its being made a rule of Chancery, the proceeding has been by motion :
Dawson v. Sadler, 1 S. & S. 537.
And generally when the objections to the award are such as can be conveni-
ently and effectually discussed on motion, the jurisdiction by bill has been doubt-
ful : Eeming v. Swinnerton, per Lord Cottenham, 1 Coo. C. C. 386 ; 2 Phill. 79.
Where.an arbitrator receives evidence on one side in the absence of the other
the award may be set aside : Walker v. Frobisher, 6 Ves. 70 ; Ddbson v. Groves,
6 Q. B. 637. So, too, where he improperly rejects evidence : Be Eaigh, 3 De
G. P. & J. 157.
But an award will not be set aside where the arbitrator erroneously rejects
admissible, or receives inadmissible, evidence : Sagger v. Baker, 14 M. & W. 9,
cited in Eussell on Arbitration, 647.
Nor will it be set aside (if good on its face) on the ground of mistake either
of fact or law : Lancaster v. ffemington, 4 A. & B. 345 ; Hodgkinson v. Femie,
3 C. B. (N.S.) 189 ; 26 L. J. (C.P.) 217 ; Binn v. Blake, L. R. 10 0. P. 388.
An award may be set aside upon any of the grounds of corruption, partiality,
misconduct, or irregularity in the course of the proceedings of the arbitration :
Ooodman v. Bayers, 2 Jac. & W. 259, per Sir WiUiam Grant ; Tittenson v.
Peat, 3 Atk. 529.
It has been set aside on the ground of interviews between the arbitrator and
one party in the absence of the other : Ea/rvey v. Bhelton, 7,Beav. 455.
And on the ground that the arbitrator has improperly delegated his anthority :
Be Eastern Counties By. Co., 3 De G. J. & S. 610 ; Be Ea/igh, 3 De G. P. & J.
157.
But where an award is sought to be set aside on the ground of the misconduct
or corruption of the arbitrator, there must be something more than mere sus-
picion : Be Eopper, 2 Q. B. 375 ; Crossley v. Clay, 5 C. B. 581 ; Moseley v.
Simpson, L. R. 16 Bq. 226.
Irregularities in the mode of conducting an arbitration may be waived by
oontiniiing the arbitration after they have been discovered : BeSalkeldand Slater,,
12 Ad. & B. 245 ; Bignell v. Oale, 2 Man. & G. 364 ; Be Tunno and Birdi
5 B. «& Ad. 488 ; Moseley v. Simpson, L. R. 16 Bq. 226.
An award made by the umpire and one of two arbitrators in the absence of the
other is a bad award and will be set aside : Morgan v. Boult, 11 W. E. (Q.B.)
264.
Where an award is not final, or uncertain, it may be set aside : Russell, 650-2.
And where the arbitrator exceeds his authority the award is bad in all cases,
unless the bad parts are clearly separable from the rest of the award and do not
affect the good parts : Ibid.
Limit of Time foe Motion to bet aside Award.
Awards procured by corruption or undue means shall be adjudged to be void
and be set aside, provided "complaint of such corruption or undue practice be
made in the Court where the rule is made for submission to such arbitration or
umpirage before the last day of the next term after such arbitration or umpirage
made and published to the parties " : 9 & 10 Will. 3, c. 15, s. 2.
The notice of motion and filing an affidavit in support is a complaint within
the meaning of this section : Corporation of Euddersfidd v. Jacomb, L. R. 10
Ch. 92.
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554 STATUTOEY JURISDICTION.
There is no " publishing to the parties " until they have notice that the award
has been made : Brooke v. Mitchell, 6M. & W. 473 ; Potter v. Newman, 4 Dowl.
504, cited in Eussell on Arbitration, 636.
And as to what constitutes publication of notice, see Russell, 63, citing Mussd-
Wooke V. Dimkin, 9 Bing. 605 ; Macarthvr v. Camphell, 5 B. & Ad. 518 ; Brooke
V. Mitchell, 6 M. & W. 473 ; Moore v. Barley, 1 C. B. 445.
Thfe time will run from the date of such notice, although it be not until long
after the party has intimation of th? contents of the award, or is served with a
copy of it : Semsworth v. Brian, 7 M. & G, 1009.
It seems to have been doubtful at common law whether the Courts had dis-
cretionary power to extend the time prescribed by the statute of 9 & 10 Will. 3,
c. 15. See Be Perring and Kymer, 3 Dowl. 98 ; Be Smith and Blake, 8 Dowl.
133 ; S. C, 2 Jur. 10i5 ; Be Eocma and Eowell, 4 M. & G. 767 ; Midland By.
Co, V, Beminq, 11 Jur. 658 ; North British By. Co. v. Trmadall, L. E. 1 0. P.
401.
But in equity the time limited by the statute has been enlarged : Harvey v.
Shelton, 7 Beav. 455.
The reference of a cause by agreement out of Court is a reference under the
statute, and not at common law, and therefore the motion to set aside the award
must without fail be made within the time giveli by the statute : Russell, 640 ;
Bushworth v, Barron, 3 Dowl. 317 ; Beynolds v. Askew, 5 Dowl. 682.
The reference of a cause by an order of the judge, or an order of nisi prius, or
by a rule of Court, is not a_ reference under the statute, but, by the common law
power of the Court, and the statutable limitation of time does not necessarily
apply : Russell, 641, and cases cited.
Where the reference is compulsory under the Common Law Procedure Act,
1854, " all applications to set aside any award made on a compulsory reference
under this Act shall and may be made within the first seven days of the term
next following the publication of the award to the parties, whether made in
vacation or tenu ; and if no such application is made, or if no rule is granted
thereon, or if any rule granted thereon is afterwards discharged, such award shall
be final between the parties ": 17 & 18 Vict. o. 125, s. 9.
Deliveet op Possession.
" Where any award made on any such submission, document, or order of
reference as aforesaid directs that possession of any lands or tenements capable of
being the subject of an action of ejectment shall be delivered to any party,
either forthwith or at any future time, or that any such party is entitled to the
possession of any such lands or tenements, it shall be lawful for the Court of
which the document authorizing the reference is or is made a rule or order to
order any party to the reference who shall be in possession of any such lands or
tenements, or any person in possession of the same claiming under or put in
possession by him since the making of the document authorizing the reference,
to deliver possession of the same to the party entitled thereto, pursuant to the
award " : 17 & 18 Vict. c. 125, s. 16.
" And such rule or order to deliver possession shall have the effect of a
judgment in ejectment against every such party or person named in it ; and
execution may issue, and possession shall be delivered by the sheriff as in a,
judgment by ejectment."
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ARBITRATION. 555
Peoductiok of Documents.
Where a submission to arbitration has been made a rule of the Court of
Chancery, the Court does not thereby acquire jurisdiction to order the production
of documents without suit : lie Anglo-Austrian Bank, 10 L. T. (N.S.) 369,
Fkiendlt Societies, BEifEFiT, and Boilding Acts.
37 & 38 Vict. c. 42 ; 38 & 39 Vict. c. 9.
Where the rules of a society under the 87 & 38 Vict. c. 42, direct disputes to
be referred to arbitration, the arbitrators are to be named and elected in the
manner such rules provide, or, if there be no such provision, at the &st general
meeting of the society, none of the said arbitrators being beneficially interested
directly or indirectly in its funds, &c. : 37 & 38 Vict. c. 42, s. 33.
" And should either of the parties to the dispute refuse or neglect to comply
vfith or conform to such award within a time to be limited therein, the Court
upon good and sufficient proof being adduced of such award haying been made,
and of the refusal of the party to comply therewith, shall enforce compliance with
the same upon the petition of any person concerned : Ibid.
" Where the parties to any dispute arising in a society under this Act agree to
refer the dispute to the Registrar, or where the rules of the society direct disputes
to be referred to the Registrar, the award of the Registrar shall have the same
effect as that of arbitration " : Ibid.
The Court may hear and determine a dispute in the following cases : —
(1) If it shall appear to the Court upon the petition of any person concerned,
that application has been made by either party to the dispute to the
other party, for the purpose of having the dispute settled by arbitra-
tion under the rules of the society, and that such application hasnot
within forty days been complied with, or that the arbitrators have
refused, or for a period of twenty-one days have neglected to make
any award :
(2) Where the rules of the society direct disputes to be referred to the Court
or to justices : 37 & 38 Vict. c. 42, s. 35.
" Every determination by arbitration, or by the Court, or by the Registrar,
under this Act of a dispute shall be binding and conclusive on all parties, and shall
be final to all intents and purposes, and shall not be subject to appeal, and shall
not be removed or removable into any Court of Law, or restrained or restrainable
by the injunction of any Court of Equity ; but a case may be stated for the
opinion of the Court : 37 & 38 Vict. c. 42, s. 36.
The Courts, both of Equity and Common Law, are averse to the exercise of any
jurisdiction in the internal disputes of benefit building societies, or to interfere
with the particular mode provided by the Legislature for the settlement of such
disputes : Harmer v. Ooodvng, 3 De G. & Sm. 407 ; Armitage v. Walker, 2 K. &
J. 21 1 ; Fleming v. Self, Kay, 518 ; 3 De G. M. & G. 997 ; Thompson v. Planet
Benefit Building Society, L. R. 15 Eq. 333 ; Crisp v. Banhury, 8 Ring. 394 ; Rex
V. MildenhaU Savings Bank, 6 A. & B. 952 ; Wright v. Deelmg, 4 H. & C. 209.
Aebiteation under Lands Clauses Consolidation Act— Sect. 25.
" When any question of disputed compensation by this or the special Act or
any Act incorporated therewith, authorized or required to be settled by arbitra-
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556 STATUTORY JURISDICTION.
tion, shall have arisen, then unlesa both parties shall concur in the appointment
of a single arbitrator, each party on the request of the other party shall nominate
and appoint an arbitrator to whom such dispute shall be referred " : 8 Vict. c. 18,
s. 25.
" And every appointment of an arbitrator shall be made on the part of the
promoters of the undertaking under the hands of the said promoters, or any two
of them, or of the secretary or clerk, and on the part of any party under the hand
of such party, or if such party be a corporation aggregate, under the common seal
of such corporation ; and such appointment shall be delivered to the arbitrator, and
shall be deemed a submission to arbitration on the part of the party by whom the
same shall be made " : Ibid.
The submission to arbitration " may be made a rule of any of the Superior
Courts, on the application of either of the parties " : sect. 36.
And "no award made with respect to any question referred to arbitration
under the provisions of this or the special Act shall be set aside for irregularity
or error in matter of form ": sect. 37.
Costs.
When a cause alone, or a cause and all matters in difference are referred, and
nothing is said in the submission respecting costs, the- arbitrator has an implied
authority to adjudicate respecting the costs of the cause, but not of the reference
or award : Russell, 354, and cases cited.
And each party must bear his own expenses of the reference, and is liable to
half the costs of the award : Ibid.
At common law an arbitrator has no power to give costs as between solicitor
and client, unless specially authorized so to do : Whitehead v. Frith, 12 East,
165.
But in equity where the costs have been referred, the arbitrator has power to
award costs as between solicitor and client : MordiMe v. Palmer, L. E. 6 Ch. 22.
In compulsory references imder the Common Law Procedure Act, where the
order of reference is silent as to costs, the arbitrator has no power over the costs,
either of the cause or reference. The costs of the cause or reference do not abide
the event, and each party bears his own costs : Russell, 355, and cases cited.
In references under the Lands Clauses Act, 1845, " all the costs of any such
arbitration and incident thereto, to be settled by the arbitrators, shall be borne
by the promoters of the undertaking, unless the arbitrators shall award the same
or a less sum than shall have been offered by the promoters of the undertaking,
in which case each party shall bear his own costs incident to the arbitration, and
the costs of the arbitrators shall be borne by the parties In equal proportions " :
sect. 34.
The coats of the reference and award under the Lands Clauses Act are now
taxed by the taxing master if required : 32 & 33 Vict. c. 18, s. 1.
The costs of and attending arbitrations under the Railways Clauses Consolida-
tion Act, 1845 (8 & 9 Vict. c. 20), are to be in the discretion of the arbitrators.
So, too, under the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict.
c. 20).
Under the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59),
" except where and as the companies otherwise agree, the costs of and attending
the arbitration and the award shall be in the discretion of the arbitrator, and the
arbitrators, and the umpire respectively " : sect. 27.
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ARBITRATION. 557
And " except and as the companies otherwise agree, and if and so far as the
award does not otherwise determine, the costs of and attending the arbitration and
award, shall be borne and paid by the companies in equal shares, and in other
respects the companies shall bear their own respective costs " : sect. 28.
Where the purchase-money of land taken by a railway company has been
ascertained by arbitration under the Lands Clauses Act, 1845, the vendor is not
entitled to a hen on the land sold for the costs of the arbitration payable by the
company : Earl Ferrers v. Stafford and Uttoxeter By. Co., L. R. 13 Bq. 524.
LiBEETY TO APPLY.
" Liberty to apply " authorizes, if an award be made, proceedings on the award,
and if the arbitration does not proceed, an application as if the reference had not
been made : Orawshay v. Collins, 3 Sw. 90.
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CHAPTER XXXIII.
THE COPYHOLD ACTS, 1841, 1843, 1852, and 1858.
4 & 5 Vict. c. 35; 6 & 7 Vict. c. 23; 15 & 16 Vict. c. 51 ;
21 & 22 Vict. c. 94.
Investment of Compensation Money — Interest to Tenant for Life.
Upon the petition, &o., Let the sum t)f £ — in Court to the credit of
" Ex parte The Copyhold Commissioners," The account, &o., he invested
in Consolidated £3 per Cent, Annuities to the credit of, &c.. Let the
dividends as they accrue upon such Consolidated Annuities when pur-
chased be paid to the petitioner — during his life or until further
order. \If forty shillings costs have not been tendered and the Commissioners
appear : Let the petitioner — pay to the Copyhold Commissioners their
costs of this application, to be taxed, &c.] [If costs to he paid out of
fund] : Tax the costs of the petitioner [and of the Copyhold Commis-
sioners] of this petition and consequent thereon.] Let out of the £ —
cash in Court to the credit of, &c., the said costs, when taxed, be
paid, &c. Let the residue of the said cash be invested in — Annuities
to the credit of, &c., and Let the dividends as they accrue upon such
annuities be paid, &c. ,
Suit — Inquiry if Enfranchisement he heneficial — Consequential
Directions.
Let an inquiry be made whether it will be beneficial for the trust
estate in question in this cause that the copyhold portion thereof
holden of the manor of — should be enfranchised under the provisions
of the Copyhold Act, 1852 ; and if so, whether the Copyhold Commis-
sioners, under the provisions of the 22nd section of the said Act, have
approved of the title of the lord of the said manor, or have directed
that the enfranchisement consideration shall be invested as by the
said Act directed ; and if it shall appear that the Copyhold Commis-
sioners have approved of such title, or have directed such investment,
an inquiry what sum or sums of money will be due to the lord and
steward of the said manor as compensation for such enfranchisement.
And Let, upon the due execution of the deed or deeds of enfranchise-
ment by such person or persons as the said Commissioners shall
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THE COPYHOLD ACTS. 559
require being certified, so mtich of £ — in Court to the credit of, &o., as
will raise the amount certified to he due besold. And Let the money
to arise by such sale be paid to such person or persons, or be carried
over to the credit of " Ex parte The Copyhold Commissioners," under
the provisions of the 39th section of the said Act as shall be certified
[to be proper]. Thellusson v. Woodford (M.E.), Nov. 24, 1855 ; Seton,
1094.
Payment into Court.
Whenever the person for the time being entitled to any rights extinguished by
means of the Copyhold Acts is entitled thereto for a limited estate or interest only,
or as a trustee for sale or otherwise, without power to give an effectual discharge
for the same, or is under any legal disability, or is a corporation not authorized to
sell such rights otherwise than under the provisions of the Acts, or refuses to re-
ceive such compensation, or does not prove his title to the satisfaction of the
Commissioners, the compensation payable for such rights is (unless it is under
£20, or being under £200, is directed to be paid to trustees) to be paid into Court
to an account, " Ex parte The Copyhold Commissioners." See 4 & 5 Vict, c. 35,
ss. 73, 74, 75 ; 6 & 7 Vict. c. 23, s. 14 ; 15 & 16 Vict. c. 51, s. 39 ; Daniell, 1928.
" Money hereafter paid into Court pursuant to the Copyhold Acts shall be placed
in the books at the Chancery Pay Office to the credit of " Mx parte The Copy-
hold Commissioners," as directed by the said Acts, and in addition thereto, to the
account of the particular manor in respect of which the money shall be so paid in ;
and in the request for a direction to receive such money the name and locality of
such particular manor shall be stated " : Chancery Funds Eules, 1874, rule 33.
Application of Money.
Such compensation may, by an order of the Court, obtained on petition, be
applied in the purchase or redemption of the land tax, or the discharge of any
debt or incumbrance affecting the rights in respect of which such compensation
was paid, or affecting other hereditaments settled therewith to the same or the
like purposes, or in payment to any party becoming absolutely entitled to such
money ; and be in the meantime invested in Consols or Reduced Annuities or
Grovemment or real securities, and the dividends and annual income ordered to
be paid to the party entitled : 15 & 16 Vict. o. 51, s. 39.
The order for the application of the compensation is made upon the petition
of the person for the time being entitled to the enjoyment of the manorial rights :
4 & 5 Vict. c. 35, s. 73 ; 15 & 16 Vict. c. 51, s. 39.
Where any ecclesiastical corporation within the meaning of the Episcopal and
Capitular Estates Act, or the Ecclesiastical Commissioners, have only a reversion-
ary interest in any manorial rights extinguished by enfranchisement, the con-
sideration of such enfranchisement is to be dealt with in manner directed by the
15 & 16 Vict. c. 51, until the time when such reversionary interest would, if the
same had not been extinguished, have come into possession, when the considera-
tion, or any Government securities in which it may have been invested, is, upon
petition to the Court of Chancery, to be paid or transferred to the Church Estate
Commissioners, who are to be considered the parties absolutely entitled to such
money : 21 & 22 Vict. c. 94, s. 5.
Where any of the Universities of Oxford and Cambridge and Durham respec-
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560 STATUTORY JURISDICTION.
tively, or any college therein respectively, or the College of St. Mary of Win-
chester, or King Henry the Sixth's at Eton, have only a reversionary interest in
any manorial rights extinguished under the Copyhold Acts, and the compensation
moneys have not heen paid to trustees, such compensation moneys are to he dealt
with in manner directed by the 15 & 16 Vict. c. 51, due notice of any such
dealing being previously given to the university or college, until the time when
the reversionary interest of such university or coUege in such manorial rights
would, if the same had not been extinguished, have come into possession ; when
the said consideration moneys, or any securities in which the same may have
been invested, are, upon petition to the Court of Chancery, to be paid or transferred
to the Copyhold Commissioners, to the account of the university or college
entitled thereto, and to be applied by them according to the provisions of the
Universities and Colleges Act, 1858, sect. 1 : 24 & 25 Vict. c. 59, s. 4.
Notice of petitions dealing with the enfranchisement moneys of Crown manors
must be served upon the Commissioners of Woods, Forests, and Land Revenues :
15 & 16 Yiot. 0. 94, ss. 43, 44.
Costs.
The petitioner is entitled to have his costs of the petition out of the fund : Ea;
parte the Archbishop of Oanterhury, 1 Coll. 154.
And the Commissioners are entitled to their costs: Ex parte Bishop of Eere-
ford, 5 De G. & Sm. 365 ; Ex parte Qiteens' College, Cambridge, 4 Jur. (N.S.)
19. But if forty shillings are tendered they will, in ordinary cases, have to hear
their own costs of appearance : see Be Oore LangtorHs Estate, L. R. 10 Ch. 328 ;
post, p. 585.
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CHAPTER XXXIV.
THE DEFENCE ACTS, 1842 to 1873.
5 & 6 Vict. c. 94; 23 & 24 Vict. c. 112 ; 27 & 28 Vict. c. 89.
Investment of Oom^ensation-money — Interest to Tenant for Life — Costs.
Let the £ — cash in Court to the credit of, &c., be invested in
Consolidated 3 per Cent. Annuities. Let the dividends as they accrue
upon the said annuities during the life of A. [the tenant for life] be
paid to the said A. or to his legal personal representatives. Let Her
Majesty's principal Secretary of State for the War Department pay to
the petitioners their costs of and incidental to the agreement dated,
&c., in the petition mentioned, and of the deduction and verification of
the title to the lands in the said agreement mentioned [and of this ap-
plication and consequent thereon]. Let such costs be taxed by the
taxing master in case the parties differ.
Trustees appointed to receive Purchase-money — A,pplication to Purposes
mentioned in Act.
Let the £2370 cash in Court to the credit of In the matter of the
Defence Act, 1860, The account, &c., be paid to C. D. E. and W. H. S.,
they undertaking to hold the same upon such trusts as having regard
to the respective natures of the properties vfill correspond most nearly
to the uses upon which the said lands and hereditaments comprised in
the notice of the — day of — in the petition mentioned, and whereof
the petitioner H. P. D. is tenant for life under the said indenture of
the — day of — , are now settled. Be Delme (M. K.), Jan. 21, 1865 ;
Be Morshead, 33 Beav. 265.
Betainer hy Tenant in Tail out of Compensation-money of Amount expended
in Permanent Improvement.
It appearing that the applicant W. has expended the sum of
£1819 88. in the erection of a steam-engine, with suitable machinery
and additional buildings for the reception and proper use thereof, at — ,
to make good the deficiency in the supply of water to the said mill
occasioned by the diversion and impounding of water through opera-
tions carried on undenJthe.. direction of the War Department, and the
562 STATUTORY JURISDICTION.
judge being of opinion that the said eteam-engine, machinery, and
buildings are of a permanent character, Let the applicant W. be at
liberty to retain for his own use, in part satisfaction of the said sum of
£1319 8«. expended by him, the sum of £920 received^ by him of the
said principal Secretary of State in discharge 6f the like amount by
the award dated, &c., awarded as compensation for the damage and
loss occasioned by the said diversion and impounding, &o. Ex parte
Duke of Wellington, 3 De G. F. & J. 13 ; Seton, 1091.
Atplication of Compensation-money.
Where the compensation for any land or interest therein taken for the purposes
of the Defence Acts amounts to or exceeds £200, and the land or interest therein
belongs to any person under any disability or incapacity, or not having the abso-
lute interest therein, or if it belongs to any person who by reason of absence is pre-
vented from treating for the lands, or who cannot be found, or who refoses to '
accept the compensation, or neglects or fails to make out a title to the lands, or
the interest claimed therein, or to any person or corporation not having power
under these Acts to agree as to the amount of such compensatioQ, or to sell and
convey such land or interest therein, it must be paid into Court in the matter of
these Acts, and of the persons claiming to be interested therein (naming them) :
5 & 6 Vict. c. 94, s. 25; 22 & 23 Vict, c 21, s. 8 ; 27 & 28 Vict. c. 89 ; Dan.
1984.
The Court is empowered to appoint a trustee or trustees for the purpose of re-
ceiving the purchase-money and applying it for any purpose mentioned in the
Act: 5&6 Vict. c. 94, s. 26.
The lands required to be taken by the Secretary of State, after payment of the
compensation-money, vest in the said Secretary of State on behalf of Her Majesty,
discharged of all estates, rights, and interests whatsoever : 23 & 24 Vict. c. 112,
s. 30.
The Court may make such orders for paying the compensation-money, or any
I)art of the same, or for placing out snch part thereof as shall be principal in the
public funds, or upon Government or real securities, and for payment of the
dividends or interest to the persons entitled, or for laying out the principal, or any
part of it, in the purchase of other lands, &c., for the benefit of the persons
entitled to or interested in the same respectively, or for appointing any person or
persons to be trustee or trustees for all or any of such purposes as the Court shall
think jiist and reasonable : .5 & 6 Vict, c. 94, s. 26 ; 22 & 23 Vict. c. 21, s. 8.
Where pending arbitration damage was occasioned by the works of the
Ordnance Department to part of the settled property being taken, and the owner
of a limited interest in it repaired the damage at his own expense, erecting build-
ings of a permanent character, the sum expended was allowed to be retained out
of the compensation-moneys : Mx parte Duke of Wdlinyton, 3 De G. F. & J. 13 ;
Order, supra.
And the Court has ordered the payment out of Court of the compensation-
moneys to trustees to be administered by them : Re Morshead, 33 Beav. 254 ; 10
Jur. (N.8.) 61.
Where the compensation is less than £200, but exceeds £20, it may, at the
option of the persons entitled for the time being to the rents and profits of the
land, either be paid into Court or to trustees : 5 & 6 Vict. c. 94, s. 27.
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THE DEFENCE ACTS. 563
Where the compensation is less than £20 it is to be applied to the use of the
persons entitled for the time being to the rents and profits of the lauds : 5 & 6
Vict. c. 94, s. 28.
To the compensation required to be paid into Court the sum of £30 is to be
added as an equivalent for expenses consequent on such payment ; and the Court
of Chancery may allot to any tenant for life, or for any particular or qualified
estate, in respect of any expenses of investment incurred by him, any portion of
such compensation and additional sum as the Court may deem just : 23 & 24
Vict. e. 112, s. 21.
Interest upon the compensation- moneys is only payable from the time of taking
actual possession : 23 & 24 Vict. c. 112, s. 32 ; and see Earl of Suffolk v. Lewis,
1 H. & M. 369.
In cases of delay on the part of the owner in making out a title to the satisfac-
tion of the Secretaiy of State, the latter may pay the amount of compensation
(without the addition) into Court ; and upon application for payment of such
money to the party entitled, the Court, if of opinion that there was no unreason-
able delay, or that a good title was shewn, may order all or any costs occasioned
by such payment into Court to be paid by the Secretary of State : 23 & 24 Vict,
c. 112, s. 22.
All orders and directions in relation to any money paid into Court under the
Defence Act, 1860, or the securities upon which the same may be invested, or
the dividends thereon, may be made and given upon summonses at chambers :
23 & 24 Vict. c. 112, s. 23 ; but see Be Morshead, 33 Beav. 254; 10 Jur. 61.
Service of Petition.
The Secretary of State need not be served with petitions dealing with the com-
pensation-moneys : i?e Morshead, 33 Beav. 254.
Costs. -
The costs of and incidental to any agreement with the Secretary of State con-
cerning the compensation for lands taken or affected under the provisions of the
23 & 24 Vict. c. 112, and the costs of the deduction and verification of the title,
are to be paid by the Secretary of State ; and will be taxed by the taxing master
at the request and expense of the Secretary of State : 23 & 24 Vict. c. 112, s. 24 ;
see also s. 22, supra.
Sale by Skceetary of State for War.
Her Majesty's Principal Secretary of State for the War Department may from
time to time as he may deem it expedient sell any lands vested in him or under ,
his control as such Secretary of State, subject to the condition that the lands are
" for ever thereafter to be kept free from buildings and other obstructions " : 36 & 37
Vict. c. 72, s. 1.
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CHAPTER XXXV.
PAELIAMENTAEY DEPOSIT ACT,
9 & 10 Vict. c. 20.
Order wnder Sect. 5.
Upon the petition, &c., and upon reading a certificate of the Chair-
man of Committees of the House of Lords [or. Speaker, or Deputy-
Speaker, of the House of Commons] wherehy it appears, &c. [recite
certificate shewing that the hill has heen withdrawn, or not allowed to pro-
ceed, or rejected, or tlmt the Act has received the royal assentl^, the cer-
tifi.cate of payment [or, transfer into] Court of the sum of £ — and the
certificate of the fund in Court, Let the £ — cash in Court to the
credit of Ex parte, &c., be paid to [or, the £ — Consolidated.^ per Cent.
Annuities in Court to the credit, &c., and any dividends, &c., he trans-
ferred and paid to] the petitioners [names of depositors] or to — [the
nominees of the depositors, or of the majority of them].
Order on Certificate of Board of Trade.
Upon the petition, &c., and upon reading a certificate of — the
secretary of the Commissioners, &c., of the Board of Trade, ■whereby
it appears [recite certificate shewing that it has heen proved to the satisfac-
tion of the Board of Trade that the company home paid up half their capital
and expended an equal sum for the purposes of the Act] an aflSdavit of —
verifying the signature to the said certificate, the certificate of pay-
ment [or, of transfer] into Court, and the certificate of fund. Let the
£ — cash in Court to the credit of Ex parte an undertaking, &c., be paid
to [or, the £ — Consolidated 3 per Cent. Annuities on the credit, &c., and
any dividends, &c., be transferred and paid to] the petitioners [names
of depositors] or to — • the nominees of the depositors [or, of the
majority of them].
Payment into Couet — Invfstment — Payment out.
In all cases in which any sum of money is required by any standing order of
either House of Parliament to be deposited by the subscribers to any work or
undertaking which is to be executed under the authority of an Act of Parliament,
the clerk in the office of the Clerk of Parliaments with respect to money required
by any standing order of the House of Lords, and the Clerk of the Private Bill
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PAllLIAMENTARY DEPOSIT ACT. 565
Office in the House of Commons, may, by warrant or order, direct the same to be
paid into Court : 9 & 10 Vict. c. 20, s. 2.
The money so paid into Court is to be placed to an account. Ex parte the work
or undertaking mentioned in the warrant or order, If Bank Annuities, Eeduced
Annuities, or Exchequer bills previously purchased with the sum required, the
same to be transferred to the like account : 9 & 10 Vict. c. 20, s. 3.
If the persons named in the warrant, or the survivors or survivor, desire invest-
ment of the cash paid in, or of the dividends on the stock, the Court may, upon
petition, order investment in the 3 per Cent. Consolidated, or 3 per Cent. Reduced
Bank Annuities, or any Government security or securities: sect. 4. See Be
Newport, Abergavenny, and Hereford By. Co., 11 Jur. 160.
The fund can only be invested in the securities prescribed in the Act, and
cannot be invested in the other securities sanctioned by the general order of the
Court : Ex parte Great 'Northern By. Co., L. E. 9 Eq. 274, cited in Dan. 5th ed.
1858.
On the termination of the session of Parliament in which the petition or bill
for the purpose of making or sanctioning the work or undertaking shall have been
introduced into Parliament, or if such petition or bill shall be rejected, or finally
withdrawn, or not allowed to proceed, or if the person or persons by whom' the
said money was paid or security deposited shall have failed to present a petition,
or if an Act is passed authorizing the making of such work or undertaking, the
Court may, on the application by petition of the person or persons named in such
warrant or order, or the survivor or survivors of them, or the majority of such
persons, order the sum of money paid in pursuance of such warrant or order, or
the stocks, funds, or securities upon which the same may have been invested, and
the interest or dividends thereof, or the Exchequer bills, stocks, or funds so de-
posited or transferred as aforesaid, and the interest and dividends thereof, to be
paid or transferred to the party so applying, or to any other person or persons
whom they may appoint in that behalf : 9 & 10 Vict. c. 20, s. 5.
But no such order shall be made in the case of any such petition or bill being
rejected, or not being allowed to proceed, or being withdrawn, or not being pre-
sented, or of an Act being passed authorizing the making of such work or under-
taking, unless upon the production of the certificate of the Chairman of Com-
mittees of the House of Lords with reference to any proceeding in the House of
Lords, or of the Speaker of the House of Commons with reference to any prooeed-
ino- in the House of (Commons, that the said petition or bill was rejected, or not
allowed to proceed, or was withdrawn during its passage through one of the
Houses of Parliament, or was not presented, or that such Act was passed, which
certificate the said Chairman or Speaker shall grant on the application in writing
of the person or persons, or the majority of persons named in such warrant, or
the survivor or survivors of them : Ibid.
The partial withdrawal of a bill does not come within the meaning of the
9 & 10 Vict. c. 20, s. 5, so as to authorize the payment out of Court of so much
of the deposit as represents the abandoned part of the undertaking : Be Aberyst-
with By. Co., 3 De G. F. & J. 201 ; 7 Jur. (N.S.) 564.
The certificate referred to in the 5th section of the Act, if signed by the
Deputy-Speaker, will be sufficient : Ex parte the Stockbridge Bailway Bill, L. K.
2 Eq. 364.
If the petition is presented by those who paid the money into Court, or by
the majority of them, and their signatures to the petition verified by affidavit,
the Court will order payment to the nominees.
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566 STATUTOEY JURISDICTION.
And payment to the nominees has been ordered where the signatures were
attested by the solicitor without afladavit : Ex parte Brompton Waterworks,
8 W. R. 636, n.
But the present practice is to verify the signatures by affidavit.
Where the petition for payment out is presented by a public company, tinder
the seal of the company, no verification of the seal is necessary for payment out
to the nominee : JSx parte London, Ohatham, and Dover Sy. Co., 8 W. E. 636.
But the petition itself must be sealed : lie Dartmouth and Torbay Uy. Co., 9
W. E. 609.
There is to be inserted in every railway bill, unless the committee to whom it
is referred makes other provisions for ensuring the completion of the works, a
clause rendering the company liable to certain pecuniary penalties (to be paid
into Court), or a clause providing that, notwithstanding the 9 & 10 Vict. c. 20,
the stock or sum deposited, and the interest -thereof, is not to be transferred or
paid out unless the company shall complete the work within the period limited,
or prove to the satisfaction of the Board of Trade that they have paid up half
their capital, and expended an equal sum for the purposes of the Act ; and that
if the said period shall expire before the railway has been opened, or such proof
has been given, the deposit shall be applied as thereinafter mentioned, and the cer-
tificate of the Board of Trade that such proof has been given shall be sufficient
evidence of the fact so certified, and it shall not be necessary to produce any evi-
dence of the Act having been passed : Standing Orders relating to Private Bills,
1871, House of Lords, No. 184; and House of Commons, No. 155 ; cited in Dan.
1859.
Where either of such last-mentioned clauses is inserted, there is to be inserted
immediately following such clause a further clause providing that the deposit (or
the sum of money so recovered by way of penalty) shall be applicable, and after
due notice in the London Gazette shall be applied, towards compensating any
landowners or other persons whose property may have been interfered with, or
otherwise rendered less valuable, by the commencement, construction, or abandon-
ment of the railway, or any portion thereof, or who may have been subjected to
injury or loss in consequence of the compulsory powers of taking property con-
ferred upon the company by the Act, and for which injury or loss no compensa-
tion, or inadequate compensation, shall have been paid ; and shall be distributed
in satisfaction of such compensation as aforesaid, in such manner and in such
proportions as to the Court of Chancery may seem fit : Ibid.
If no such compensation shall be payable, or if a portion of the deposit or of
the penalty shall have been found sufficient to satisfy all just claims in respect
of such compensation, then the deposit or penalty, or such portion thereof as
may not be required as aforesaid, shall be paid (or transferred) to, or on the ap-
plication of, the person or persons, or the majority of the persons, named in
the warrant or order mentioned in the 9 & 10 Vict. c. 20, s. 2, or the survivor
or survivors of them, or the company from whom such penalty was recovered :
Ibid.
Where a warrant for the abandonment of any railway is granted, any money
remaining deposited as security for the completion of the railway, or the stocks
funds, or securities in which the same is invested, or any Bank Annuities, stocks,
funds, securities, or Exchequer bills remaining deposited as such security ; or in
case the abandonment authorized is of part only of a. railway, then such propor-
tionate part as the Board of Trade thinks fit, of such money, stocks, &c., shall be
paid, Iraijsfurrcd, or delivered out to the peisons who would be entitled to receive
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PARLIAMENTARY DEPOSIT ACT, 567
the same if the railway had been completed and opened for public traffic ; and the
Court of Chancery will, on the application of those persons, order payment, trans-
fer, or delivery out thereof accordingly, on a certificate of the Board of Trade
certifying that a warrant for abandonment has been granted : 30 & 31 Vict.
0. 127, s. 34.
Where the warrant is granted on condition that the funds or securities shall be
applied as part of the assets of the company, and the company is being wound up,
the Court may order the funds or securities, or so much thereof as is required to
be applied as assets of the company, to be paid, transferred, or delivered out to
the official liquidator ; and unless the Court is satisfied that the same, or any part
thereof, are not required to be applied as assets, the Court is not to order the same,
or any part thereof, to be paid, transferred, or delivered out to any other person :
32 & 33 Vict, c, 114, s. 6.
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CHAPTEE XXXVI.
LANDS CLAUSES CONSOLIDATION ACTS, 1845 and 1860.
(8 & 9 Vict. c. 18 ; 23 & 24 Vict. c. 106.)
Investment of Purchase-money — Land — Sect. 69.
The Court being of opinion that the purchase of the freehold [or,
copyhold] lands situate, &c., in the petition mentioned, is a fit and
proper purchase wherein to invest the sum of £ — , to he raised as
hereinafter mentioned, Let an inquiry he made whether a good title
can be made to the said freehold [or, copyhold] lands [or, if Court
directs inquiry as to the propriety of purchase as well as to title : Let an
inquiry be made whether the purchase, &o., is a fit and proper pur-
chase wherein to invest, &c., and if so, Let an inquiry be made
whether a good title, &c.] And in case a good title can be made to
the said lands and premises. Let a proper conveyance [or, surrender]
thereof be settled by the judge. And upon the due execution thereof
by such parties as the judge shall direct being certified. Let so much
of the £ — in Court to the credit of, &c., as will raise the said sum of
£ — be sold ; and Let the money to arise by the said sale be paid
to such person or persons as shall be named in the chief clerk's cer-
tificate [and in such proportions as shall be therein mentioned].
If ordered : Let the interest as it accrues during the life of A.
[the tenant for life] upon the residue of the said annuities, after the
said sale, be paid to the said A., or to his legal personal representative.
Directions for payment of costs according to the Act. See form,
p. 577.
Investment of Purchase-money — Enfranchisement of Copyholds — Same
Section.
The Court being of opinion that the enfranchisement of the copy-
hold lands situate, &c., held of the manor of — , is a fit and proper
investment for the sum of £ — , to be raised, &c., Let an inquiry be
made whether a valid enfranchisement can be made thereof. And if
a good title can be made to the said manor, Let a proper deed for
effecting the said enfranchisement be settled by the judge. Usual
consequential directions. — Directions for payment of costs according
to the Act.
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LANDS CLAUSES CONSOLIDATION ACTS. 569
Enfranchisement of Copyholds — Inquiry as to Title (ind as to Sum
Let an inquiry be made whether a valid enfranchisement of the
copyhold lands and hereditaments in the petition mentioned can be
made, and if so, what sum will be required to effect such valid en-
franchisement. And upon the certificate of the chief clerk that such
valid enfranchisement can be made. Let the sum of £ — , part of the
£ — in Court to the credit of, &c., be paid to the petitioner T. C.
And thereout Let the petitioner pay the sum required for such en-
franchisement of the said copyhold hereditaments, and the purchase
of the freehold and inheritance therein, as in the petition mentioned.
Let the residue of the said £ — after such payment be held by
the petitioner T. C, the treasurer of the college, on behalf of him-
self and the petitioners T. M., F. H., &c., as the acting trustees of
Cheshunt College, or such persons as shall be the acting trustees
thereof for the time being. — Directions for taxation and payment of
costs. Be Cheshunt College, 1 Jur. (N.S.) 995.
Enfranchisement of Copyholds — Enfranchisement approved — Order made
in Suit and tmder the Act.
Let the petitioners, the Defts W. S. and L. J., execute the deed of en-
franchisement of the copyhold estate of T. J., the testator, approved by
the chief clerk, and mentioned in his certificate dated, &c. Let so much
of the £ — annuities in Court to the credit of, &c., as will raise £1786,
the consideration money and interest, &c., from the — day of — to
the — day of — [the total amount to be certified] be sold, and out of
the money to arise by such sale the said £1786 and interest be paid,
&c., upon the lords of the said manor delivering to the petitioners, as
devisees under the will of T. J., the said deed of enfranchisement
(the delivery of such deed to be verified by affidavit). — Directions
for taxation according to the Act of the costs of petition and of the
enfranchisement, and for payment by the Great Northern Eailway
Company. — Directions for taxation of costs of suit and for payment
out of fund in Court. Dixon v. Jackson, 25 L. J. (Ch.) 588.
Investment of Purchase-money — Redemption of Land Tax — Same Section.
The Court being of opinion that the purchase or redemption of
the land tax upon the hereditaments and premises situate, &c.,
in the contract dated, &c., in the petition mentioned, is a fit and
proper purchase wherein to invest the sum of £ — , to be raised in
manner hereinafter mentioned, Let, out of the said £ — cash in Court
to the credit of, &o., the sum of £ — be invested in Consolidated £3
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570 STATUTORY JUEISDICTION,
per Cent. Annuities upon tlie like credit. And Let such Bank Annui-
ties when purchased be transferred to the Commissioners for the
Eeduction of the National Debt, as the consideration for the said land
tax. — Directions for payment of costs according to the Act.
Investment of Purchase-money — Discharge of Incumbrance— Same Section.
The Court being of opinion that it is fit and proper that the sum
of £ — to be raised in manner hereinafter mentioned should be applied
in discharge of the incumbrance dated, &c., in the petition mentioned,
Let a proper reconveyance [or, re-assignment] of the hereditaments
[or, premises] comprised in the said indenture be settled by the judge.
And upon the due execution thereof by such parties as the judge shall
direct being certified, Let, out of the £ — cash in Court to the credit
of, &c., the sum of £ — be paid [or, if stock to be sold : Let so much of
the £ — £3 per Cent. Annuities on the credit, &c., as will raise the
sum of £ — be sold, and Let the money to arise by such sale be paid]
to such person or persons, &c. And thereupon Let A., the mortgagee,
deliver over to the petitioners upon oath the said indenture dated,
&o., and all documents in his possession or power relating to the pre-
mises comprised in the said indenture dated, &c. — Directions for pay-
ment of costs according to the Act.
Similar Order — Special Provision for Costs of Mortgagee.
The Court being of opinion, &c., Let a proper reconveyance of the
mortgaged premises in the petition mentioned be settled by the judge.
And upon the due execution thereof by such parties as shall for that
purpose be named in the chief clerk's certificate being certified, Let,
out of the sum of £1310 cash, part of the £4876 2s. cash, at the credit
of Ex parte the Great Eastern Eailway Company, In the matter, &c.,
the sum of £700, and interest thereon at the rate of £ — per cent,
per annum from the — day of — to the — day of — , be paid to
such person or persons as shall be certified by the chief clerk entitled
to receive the same. And thereupon, and upon payment to the said
mortgagees of any costs, charges, and expenses properly incurred by
them under the provisions of their mortgage security, Let W. S.,
J. E., and W. S. the younger [the mortgagees] deliver up on oath all
deeds and documents, &c., to the petitioners, or as they shall appoint.
Let the residue of the said £1310 be invested in Bank £3 per Cent.
Annuities to the credit, &c. Let the dividends as they accrue upon such
Bank Annuities be paid to the petitioners, the trustees of the testator's
will. Let, pursuant to the 80th section of the Lands Clauses Consolida-
tion Act, the Great Eastern Eailway Company pay to the petitioners
their costs of the said reconveyance (including therein all reasonable
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LAKDS CLAUSES CONSOLIDATION ACTS. 571
pharges and expenses incident thereto, and including what the peti-
tioners shall have paid to the said mortgagees for their costs of such
reconveyance), or which have been incurred in consequence thereof
(other than such costs as are by the said Act otherwise provided for)
and of obtaining this order and all proceedings relating thereto [to
be taxed by the taxing master in case the parties differ]. Let the
petitioners pay to the said mortgagees their costs of this petition
[to be also taxed by the taxing master in case the parties differ]. Be
Wilkinson (V.-C. M.), Dec. 22, 1871.
Similar Order — Equitable Mortgage.
The Court being of opinion, &o. [last order'\, Let out of the cash,
&o. [or, Let so much of the £ — Annuities, &c., as will raise, &c.]
be sold, and the moneys to arise by such sale] be paid to — , the mort-
gagee. And upon such payment being made, Let the said — deliver
' up to — , the mortgagor, the said indenture dated, &o., and all deeds
and documents, &c. — ^Directions for payment of costs.
Investment of Purchase-money — Bemioving or replacing Bmldings — Inquiries
—Sect. 69.
Let an inquiry be made whether it is fit and proper that any and
what part of the £ — cash in Court to the credit of, &c., should be
applied in removing [or, replacing] the buildings taken by the said
company [or, injured by the proximity of the works of the said com-
pany, or, in substituting other buildings for the buildings taken,
&c., or injured, &c.] as in the petition mentioned, and in what man-
ner. And in case it shall appear that it is fit and proper that any
part of such cash should be so applied, Let the petitioner be at
liberty to remove [or, replace] such buildings [or, substitute other
buildings for the buildings taken, &c., or injured, &c.] in such man-
ner as shall be certified to be fit and proper. Let, upon such removal
[or, replacing, or, substitution] being completed, the sum which shall
be certified to be fit and proper to be applied as aforesaid be paid
out of the said sura of £ — cash to such person or persons, &c., as shall
be named in the chief clerk's certificate as entitled to receive the same.
Investment — Buildings — Certificate of Completion.
The Court being of opinion that it is fit and proper that £1300
should be expended in erecting the nine several houses or cottages and
erections and buildings intended to be erected and built upon the land
in the petition mentioned, and in the manner specified by the affidavits
of — , Let the petitioner be at liberty to erect the said houses in the
manner so specified. Let, upon the completion of the said houses being
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572 STATUTORY JURISDICTION.
certified, so much of the £ — , on the credit, &c., as will raise the sum
of £1300, and also any expenses properly incurred as relate to the said
houses, and to be certified, he sold. Let, out of the money to arise by
such sale, the said £1300, and the amount which shall be certified in
respect of the said expenses, be paid to such person or persons, &c. —
Directions for taxation and payment of costs. Be Bummer's Trusts,
2 De G. J. & S. 515 ; 11 Jur. (N.S.) 615.
. Similar Order — Advances during Progress of Works.
This Court being of opinion, &o. [see last order]. Let the petitioner
be at liberty, &c. And during the progress of the said works Let
such sum as shall from time to time be certified to be proper to be paid
in respect of the amount actually laid out or expended, or such part
thereof as shall be approved of as proper to be expended in removing
[or, leplacing], &g., not exceeding the sum of £ — , be paid out of the
£ — cash in Court to the credit of, &c., to such person or persons, &c.
And upon the completion of the said works being certified, Let the
residue of the said sum, the amount thereof to be certified, be paid, &c.
Investment — Business diverted — Taking down Trade Buildings — Erecting
Dwelling-howes.
Directions for carrying over a sum of £1454 16s. to a separate
account. Let an inquiry be made as to the amount which will be fit
and proper to lay out in the alterations and permanent improvements of
the property mentioned in the — paragraphs of the affidavit of — filed
the — day of — , according to the specifications and contracts men-
tioned and referred to in the — paragraphs of the said affidavit, and
with any and what modifications thereof. Let, out of the said cash
when so carried over, the amount which shall be certified to be proper
to be laid out in such alterations and permanent improvements accord-
ing to the specification and provisional contracts in the petition men-
tioned, or with such modification thereof as shall be approved by
the judge, be paid to the persons to be named in the chief clerk's
certificate of approval, and in such proportions, if any, as shall be
therein mentioned. — Directions for investment of residue of cash, pay-
ment of interest, and for taxation and payment of costs. Be Johnson's
Settlement, L. R. 8 Eq. 348.
Alterations and Additions to. Mansion-house and Offices, and Outlay upon
Farm Buildings and Premises not sanctioned hy the Court — Bemainder-
man opposing — Petition dismissed.
Upon the petition of H. R. L. on the — day of — , preferred, &c.,
praying that £651 Qs. lid. Bank 3 per Cent. Annuities on the credit,
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LANDS CLAUSES CONSOLIDATION ACTS. 573
(fee, and the £490 lite annuities on the credit, &c., and the £762 like
annuities on the credit, &c., might respectively^ be sold, and that out
of the' money to arise by sxioh sales the following sums might be re-
paid to the petitioner as being sums expended by him in permanent
and substantial improvements of the — mansion-house and grounds,
that is to pay, £1680 in the construction of fire-tank, hot-air engine,
hot-wafer apparatus for bath-room and house, for gasworks, and for
repairing the vineries and for constru(!ting a new conservatory and
hot-houses; and the sum of £142 6«. expended by the petitioner in
the erection of a new hop kiln and buildings adjoining at — Farm,
part of the said estate ; and that out of the said moneys there might
also be paid what should be expended in putting the roof of the said
mansion-house into proper repair ; and that thereout also there might
be paid the amount which might properly be expended (not exceeding
£350) in erecting and constructing the servants' rooms, and in the re-
pairs, improvements, and alterations (not exceeding £450) in the
buildings at — Farm, also part of the said estate ; and a sum not ex-
ceeding £350 in certain improvements at — Farm, also part of the
said estate ; and the sum of £ — in building new cottages at — ; and
upon hearing counsel for the petitioner [the tenant for life], and for
E. L. P., E. L. P., &c. [the remaindermen], and for J. H. and T. C. W.
[the trustees of settlor's will], this Court doth not think fit to make
any order as upon the said petition. Tenant for life to pay costs
of the remaindermen of appearing on petition. Costs of railway com-
pany and of trustees out of the estate. Be Leigh's Estate (V.-C. B.),
April 29, 1871 ; affirmed L. E. 6 Ch. 887.
Intenm Investment — Bank Annuities or Beduced Annuities — Interest to
Party ^entitled — Sect. 70.
Let the sum of £ — [part of the] cash in Court to the credit of, &c.,
be invested in Consolidated 3 per Cent. Annuities [or, Eeduced An-
nuities] to the credit of Ex parte, &c., the account, &c., such invest-
ment to be made without deducting brokerage in respect of the same,
the petitioners by their counsel undertaking to pay to the Chancery
broker such brokerage as may be due upon such investment. Let the
interest to accrue during the life of A. upon the said Consolidated 3 per
Cent. Annuities \or, Eeduced Annuities] be paid to the said A., or to his
legal personal representatives [or, if the rector of parish, to — , so long
as he shall continue rector of the parish of — , and to his successors,
rectors for the time being of the said parish, to be verified by affidavit ;
or, if to corporation sole, to — , so long as be shall continue, &c., and to
his successors — , for the time being, &o.] — Directions for payment of
costs.
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574 STATUTORY JURISDICTION.
Interim Investment — Mortgage — Same Section.
The Court being of opinion that it is fit and proper that the sum of
£ — hereinafter mentioned should be invested upon the real security
in the petition mentioned, Let an inquiry be made whether a good title
can be made to the [freehold] hereditaments situate, &c., in the peti-
tion mentioned [or, if Court directs inquiry as to property as well as to
title : Let an inquiry be made whether it is fit and proper that the sum
of £ — hereinafter mentioned should be invested upon the real security
in the petition mentioned ; and if so, Let an inquiry be made whether
a good title, &o.]. And in case a good title can be made to the said
[freehold] hereditaments, Let a proper conveyance, &c., be settled, &c.
— Consequential directions. See p. 668.
Compensation under Sect. 73 — (^Injury, Inconvenience, or Annoyance) —
In
Let an inquiry be made whether any and what portion of the £ —
cash in Court to the credit of, &c. [or, £ — annuities, &c.], ought to be
allotted pursuant to the 73rd section of the Lands Clauses Consolida-
tion Act, 1845, to the petitioner — , the tenant for life in the petition
named, as compensation for any injury, inconvenience, or annoyance
which he may be considered to have sustained, independently of the
actual value of the lauds as taken, and of th.e damage occasioned to the
lands held therewith, by reason of the taking of the lands and the
making of the works in the petition mentioned. Let the further con-
sideration of the petition be adjourned, &c.
Compensation under same Section — New Road.
Let an inquiry be made how much of the £5260, part of the
£9443 16s. cash in Court to the credit of, &c., ought to be paid to the
petitioner — in respect of the expenses to be incurred in making a' new
road from his residence, situate, &c., towards the railway station at — ,
and building lodges thereon. Adjourn further consideration of petition.
Be DuJce of Marlborough, 13 Jur. 738.
Compensation — Copyholds — Inquiry as to Fines payable under 21 & 22
Vict.
1. Let an inquiry be made whether the petitioner as tenant for
life of the manor of — , in the petition mentioned, is entitled to any
royalty upon the bricks made from the clay of the freehold lands
purchased by the railway company as in the petition mentioned, and
if so, what is the proportion of the sum of £ — on the credit, &c., '
which represents the amount of such royalty. 2. An inquiiy whether
under the circumstances in the petition mentioned any fines would
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LANDS CLAUSES CONSOLIDATION ACTS. 575
have become due and payable under tbe 6th section of 21 & 22 Vict.
c. 94, from such of the copj' holders as were admitted prior to the 1st of
July, 1853, to the copyhold lands purchased by the said railway com-
pany, and whether the petitioner, as s,uch tenant for life, is entitled to
such fines (if any) as aforesaid, and if so, what is the proportion of the
said £11,050 which repi'esents the amount of such fines. Let out
of the said £11,700 the sum of £450 and £200, being the amounts
paid by the company for temporary occupation and temporary injury,
and for sand, making together £750, be paid to the petitioner T. W.
[the tenant for life.] Let £11,050, the residue of the £11,700, be
invested, &c., and the dividends paid to the tenant for life. Further
hearing adjourned. JJe Sir Thomas Wilson's Estate, 1861, B. 2168;
Seton, 1068.
Tenant for Life declared not entitled to Compensation in respect of Fines
from Copyholders under 21 & 22 Vict. c. 94. ,
Upon the further hearing of the petition of Sir T. W. &c., Let the
paragraph No. 2, in the chief clerk's certificate dated, &c., mentioned
be varied, and as varied be as follows : " Under the circumstances in
the said petition mentioned no fines would have become due and
payable under the 21 & 22 Vict. c. 94, s. 6, from such of the copy-
holders in the petition named as were admitted prior to the 1st July,
1853, to the copyhold lands purchased by the railway company as
in the petition mentioned, and the petitioner Sir T. W. as tenant for
life, &c., is not entitled to any such fines." — Directions for taxation
and payment of costs. He Sir Thomas Wilson, 1862, B. 2117.
Compensation under Sect. 74 — (Leases for Lives or Years, dc.) — Leasehold
insufficient to pay Annuity charged.
Lifr the sum of £1100 be carried over to the credit oi Ex parte, &c.,
to an account to be intituled " The account of F. P. and A. F., the
trustees of the will," &c. Let out of such sum when carried over
£150 be paid to petitioner on account of her annuity of £52 up to the
20th October, 1849. Let £950, the residue of the £1100, be invested
in Bank £3 per Cent. Annuities, and out of the interest as it accrues
due on such annuities Let the said annuity of £52 be paid to the
petitioner by equal half-yearly payments, &c. — Directions for sale of
capital from time to time to make good a deficiency of income. Ex
parte Wilkinson, 3 De G. & Sm. 633.
Compensation under Sect. 74 — Government Annuity.
Directions for carrying over a sum of £600 to a separate account
and for investment in Bank £3 per Cents. — Let the petitioner enter
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576 STATUTORY JURISDICTION.
into a contract with the Commissioners for the Eeduction of the
National Deht for the purchase of a Government annuity of £26, or as
near to that snm as such contract can be entered into, in the name and
on the life of the petitioner, by a transfer of Bank £3 per Cent. An-
nuities to the said commissioners. Let so much of the said Bank
Annuities to be so purchased with the said £500 as shall be the
amount at which the petitioner shall contract for the purchase of
such life annuity (the amount to be verified by afBdavit) be trans-
ferred to the Commissioners for the Eeduction of the National Debt as
the consideration for the purchase of the said annuity. Let the interest
to accrue on the residue of the said annuities, after such transfer, and
all accumulations of interest, be invested in like manner. — Liberty to
apply. — Directions for taxation of costs and payment by the Metro-
politan Board of Works. Be Pfleger's Trusts, L. E. 6 Eq. 426.
Compensation under same Section — Leaseholds in Settlement — Tenant for
Life to receive same Income as would have arisen from Leaseholds.
Directions for taxation and payment of costs. — ^Let the residue of
the £680 cash, &c., be paid to the petitioners J. F. and T. H., to he by
them invested in their names in Bank £3 per Cent. Annuities. Let
the said J. F. and T. H. in each year until the year 1893, provided
F. F. P. in the petition named shall so long live, and his interest
therein remain unforfeited, sell so much of the Bank Annuities so to
be purchased as with the interest which will in each of the said years
accrue on the said Bank Annuities make up the annual sum of £35.
Let the petitioners pay the said sum of £35 to the said F. F. P. by
half-yearly payments of £17 10«. as from the — day of — , the first
payment to be made on the — day of — . Let the petitioners on the
death of the said F. F. P. before the year 1893, or the forfeiture of
his interest, apply the residue of the said Bank Annuities, and the
interest as it accrues thereon, in the same manner as the rents of the
leasehold premises comprised in the will of the testator W. P. are
directed to be applied. Be Phillip's Trusts, L. E. 6 Eq. 250.
Leaseholds let at less than Bach Bent — Dividends to Tenant for Life only
to equal Beserved Bent — Sect. 74.
Liberty for the petitioner M. A. W. out of the £687 cash paid to
her by the L. B. and S. C. E. for interest upon purchase-money to
retain a sum of £51 5s. for certain costs, and the sum of £1 1 9«. 9c?.,
on account of arrears up to the — day of — , in respect of the annual
sum of £10, &c. — Directions for transfer by the trustee of the settle-
ment of £ — Bank Annuities [the sum in which the residue of interest
had been invested] into Court to separate account. — Directions for in-
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LANDS CLAUSES CONSOLIDATION ACTS. 577'
vestment of cash in Court representing principal of purchase-money to
similar account. — Let, out of the interest from time to time to accrue
during the life of the petitioner M. A. W., the annual sum of £10, less
income tax, he, on or after the 29th September, 1866, and on or after
the same day in each succeeding year, paid M. A. W., up to and in-
cluding the 29th September, 1877, or until further order. — Directions
for investment and accumulation of residue of interest, and for taxation
and payment of costs. Be Wootton's Settlement, L. E. 1 Eq. 589.
Investment or Payment out of Bepomt-money — Sect. 87.
Let the sum of £ — [part of the £ — ] cash in Court to the credit, &c.,
be invested in £3 per Cent. Annuities to the credit of, &c. Let the
interest from time to time to accrue thereon, and all accumulations of
interest, be invested in like annuities. If payment out to promoters :
Let the sum of £ — [part of the £ — ] cash on the credit, &c., be paid
to the petitioners [the promoters of the company] or to — on behalf of
the petitioners, &c. — Directions for payment of costs.
Costs.
Cogta of Purchase — Investment — Beinvestment — Sect. 80.
PnESUANT to the 80th section of the Lands Clauses Consolidation
Act, 1846, Let [if required hy the company : upon the due execution of
the conveyance of the lands in the petition mentioned] the said com-
pany pay to the petitioners — their costs of the following matters,
that is to say \_If of purchase : the costs of the purchase or taking of
the lands in the petition mentioned, or which shall have been in-
curred in consequence thereof, other than such costs as are by the said
Act otherwise provided for :] and [If of investment in Government or real
securities : of the investment of the said money in the said [Bank]
Annuities or real securities :] and [If of reinvestment in land : of the re-
investment of the money in the petition mentioned in the purchase of
the lands therein also mentioned :] and [If of orders obtained for amy of
the purposes aforesaid : of the orders dated, &c., and of this order, and of
all proceedings relating thereto : If litigation has been suggested : except
such costs as are occasioned by litigation between adverse claimants.]
Let it be referred, &c., to tax, &c. [in case the parties differ].
Costs of Beinvestment — Land taken from one Owner by several Gompa/nies. .
Eefer to the taxing master to tax and settle the costs of the peti-
tioner of the following matters, including therein all reasonable
charges and expenses incident thereto, that is to say, his costs of the
investment of the £15,480 in the purchase of the lands in the petition
mentioned, and of obtaining this order, and of all proceedings relating
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578 STATUTORY JURISDIGTION.
thereto (except STicli costs, if any, as are occasioned by litigation between
adverse claimants). And in such taxation the taxing master is to dis-
tinguish the costs of the ad valorem stamp upon the assignment or
conveyance of the property [and the surveyor's fee in the petition
mentioned] fr&m the other costs. Let the said companies pay to the
petitioner his said costs, charges, and expenses when taxed (except such
costs as are hereinbefore directed to be distinguished) in equal propor-
tions, and do pay the costs so to be distinguished rateably in propor-
tion to the amount which the moneys to arise by the sale of the several
sums of stock standing to the several accounts aforesaid, together with
the cash on the like accounts, are to contribute to make up the said
£15,480 [the amount of such equal and rateable proportions to be certi-
fied by the taxing master]. Mc parte Bishop of London, 2 De G. F. &
J. 14; Be Merton College, Oxford, 33 Beav. 257 ; affirmed 10 Jur. (N.S.)
222 ; Ex parte Corporation of London, L. E. 5 Eq. 418.
Costs of Conveyance of Land purchased — Sects. 81-3.
Let it be referred to the taxing master to tax and settle the said
bill. Let the petitioners and all other parties produce before the
master upon oath as he shall direct all books, papers, and writings in
their custody or power respectively relating to the matters hereby
referred, or any of them ; and that they be examined touching the
same matters, or any of them, as the said master shall direct. And if
one-sixth of such bill be disallowed on such taxation, Let the taxing
master tax the petitioners their costs of such taxation ; and if one-sixth
part of such bill be not disallowed on such taxation the master is to
tax the said S. M. his costs of such taxation. Let the master certify
the amount due in respect of the said bill, having regard to the costs of
such taxation so to be taxed as aforesaid.
Investment of Ptjechase-monet.
Sections 69 and 70. .
" If the purchase-money or compensation which shall be payable in respect of
any lands, or any Interest therein, purchased or taken by the promoters of the
undertaking from any corporation, tenant for life or in tail, married woman seised
in her own right or entitled to dower, guardian, committee of lunatic or idiot,
trustee, executor, or administrator, or person having a partial or qualified interest
only in such lands, and not entitled to sell or convey the same except under the
provisions of this or the special Act, or the compensation to be paid for any per-
manent damage to any such lands, amount to or exceed the sum of £200, the
same shall be paid into the bank in the name and with the privity of the Ac-
countant-General of the Court of Chancery in England, if the same relate to lands
in England or Wales, or the Accountant-General of the Court of Exchequer in
Ireland, if the same relate to lands in Ireland, to be placed to the account there
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LANDS CLAUSES CONSOLIDATION ACTS. 579
of such Accountant-General ex parte the promoters of the [describing them by
their proper name] in the matter of the special Act [citing it] ; and such moneys
shall remain so described until the same be applied to some one or more of
the following purposes (that is to say) : —
In the purchase or redemption of the land tax, or the discharge of any debt
or incumbrance affecting the land in respect of wliich such money shall
have been paid, or affecting the lands settled therewith to the same or the
like uses, trusts, or purposes ; or
In the purchase of other lands to be conveyed, limited, and settled upon the
like uses, trusts, and purposes, and in the same manner as the lands in
respect of which such money shall have been paid stood settled ; or
If such money shall be paid in respect of any buildings taken under the
authority of this or the special Act, or injured by the proximity of the
works, in removing or replacing such buildings, or substituting others in
their stead, in such manner as the Court of Chancery shall direct ; or
In payment to any party becoming absolutely entitled to such money ": 8 & 9
Vict c. 18, s. 69.
Land Tax — Debts and Ikcumbrances.
A tenant for life who has redeemed the land tax under the Land Tax Acts may
reimburse himself out of the proceeds of the land purchased by the company : Ex
parte Lord Northwick, 1 Y. & C. Ex. 166 ; Be London, Brighton, and South
Coast By. Co., 18 Beav. 608.
A leasehold interest has been held to be an incumbrance within the meaning of
the 69th section : Me Manchester, Sheffield, and Lincolnshire By. Go., 21 Beav.
162 ; 2 Jut. (N.S.) 31 ; Ex parte Corporation of London, L. B. 5 Bq. 418 ; Be
Brasher, 6 W. R. 406 ; cited in Dan. 5th ed. 1863.
Where the money to be reinvested represented the purchase-moneys of several
companies, the surveyor's fee as well as the ad valorem stamp on the conveyances
was ordered to be paid by the companies and public bodies rateably : Ex parte
Corporation of London, L. E. 5 Bq. 418.
Purchase of other Lands.
Money paid in respect of freehold or leasehold lands may be laid out in the
purchase of copyhold lands : Be Cann, 15 Jur. 3 ; Be Browne, 16 Jur. 158, cited
in Dan. 1864.
And the purchase-money of freehold or copyhold lands may be laid out in the
enfranchisement of copyholds : Cheshimt College, 1 Jur. (N.S.) 995 ; see Order,
p. 569 ; Dixon v. Jackson, 25 L. J. (Ch.) 588.
But the purchase-money of freehold or copyholds will not generally be laid out
in leaseholds : Be Lancashire and Yorkshire By. Co., 2 W. E. 667 ; Ex parte
.Macaulaif,2W.'R. 667.
The money may be laid out in land, altliough the applicants are absolutely
entitled : Be Jones, 18 W. E. 312, cited in Dan. 1864.
If after investment of the purchase-money the balance does not exceed £20, it
may be ordered to be paid to the tenant for life : Be Lord Egremont, 12 Jur. 618 ;
Be Baternan, 21 L. J. (Ch.) 691, cited in Dan. 5th ed. 1864.
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580 STATUTORY JURISDICTION.
EeMOVING OB EEPLACING BUILDINGS — PERMANENT IMPROVEMENTS.
The purchase-money arising from land taken by a railway company has been
ordered to be applied in the erection of new buildings, upon evidence that such an
application would be for the benefit of the estate : Ex parte Sliaw, 4 Y. & 0. 506 ;
Ee Partington, 11 W. R. 160 ; Be Dummer, 11 Jur. (N.S.) 615 ; 3 De G. J. &
S. 515 ; see Order, p. 571 ; Be Davis, 3 De G. & J. 144.
Where the effect of a purchase by a railway company had been to divert busi-
ness from certain trade buildings on another part of the estate, and to render them
useless for trade purposes, the special circumstances were held to justify the Court
in laying out the purchase-money in taking down the trade buildings and erecting
dwelling-houses : Be Johnson, L. R. 8 Eq. 348 ; Order, p. 571.
And the money has been applied in the repairs of a building limited to the same
uses as the land purchased : Wigan Glebe Act, 3 W. R. 41.
The purchase-money of glebe land taken by a railway company has been paid
to the incumbent for the purpose of building a parsonage-house : Be Whitfield,
1 J. & H. 610. So, too, in the case of rebuilding a parsonage-house : Be Lord
Sotliam's Trusts, L. R. 12 Eq. 76. And in the case of improvements in or
additions to the house : Ex parte Bector of Claypole, L. R. 16 Eq. 574.
The Court will not, however, unless in exceptional cases, authorize an invest-
ment of the purchase-money in buildings which will produce no income : Ex parte
Corporation of Liverpool, L. R, 1 Cb. 596, 598 ; Be Leigh's Estate, L. R. 6 Ch.
887 ; Order, p. 573 ; Brunshill v. Caird, L. R. 16 Eq. 493 ; Drake v. Trefusis,
L. R. 10 Ch. 364.
And it has been held that the direction to lay out personal estate in the pur-
chase of land does not authorize the Court to lay out any part of it in repairs and
permanent improvements, however necessary : Brunshill v. Caird (L. 0. for M. R.),
L. R. 16 Eq. 493.
And that where a portion of the glebe lands had been sold to redeem the land
tax, the surplus moneys could not be applied under the Land Tax Redemption
Act to the i-epairs and improvements of the vicarage-house : Be Nether Stowey
Vicarage, L. R. 17 Eq. 156.
But an outlay in the erection of new buildings, whether by way of addition to
or in substitution for those which are ruinous, will be sanctioned by the Court
when proved to be beneficial to the estate: Drake v. Trefusis, L. R. 10 Ch.
364.
Where there was definite evidence of the advantage to be gained, the Court
sanctioned the application of purchase-money arising from glebe land in the erection
of farm buildings for the use of the rest of the land : Ex parte Bector of Shipton-
under-Wychwood (L. C), 19 W. R. 549.
Where under an Inclosure Act lands had been allotted to a rector, who had a
power of selling to pay expenses, and under a Railway Act compensation-money
had been paid into Court in respect of other lands of the rectory, the Court sanc-
tioned the application of the money in payment of the expenses of the inclosure :
Ex parte Lockwood, 14 Beav. 158.
Payment to Persons entitled^ Affidavit of Title.
" In the case of petitions under Acts of Parliament authorizing the sale of
property for public purpoiies, where the purchase-money is directed by any such
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LANDS CLAUSES CONSOLIDATION ACTS. 581
Acts of Parliament to be paid into Court, the petitioners claiming to be entitled
to the money so paid in must make an affidavit, not only verifying their title, but
also stating that they are not aware of any right in any other person, or of any
claim made by any other person, to the sum of £ — in the said petition mentioned,
or to any part thereof, or if the petitioners are aware of any such right or claim
they must, in such affidavit, state or refer to and except the same " : Cons. Ord. 34,
rule 3.
As a general rule this affidavit is required, modified according to circumstances
of the case, where the application is for the payment only of the interest to the
tenant for life for the accumulation of interest, or for carrying fund to separate
account : Re Milne, 8 L. T. (N.S.) 199 ; St. Mary's College, 14 W. R. 788.
But under special circumstances the Court will not insist upon the tenant for
life making the affidavit : Be Smith's Estate, 14 W. E. 949.
And the Court may dispense with the affidavit heitig made by all the peti-
tioners : Jersey v. Jersey, W. N. (1866), 78.
Where the land taken formed part of charity property the affidavit of the clerk
to the trustees was held sufficient : Be King Edward VI.' s Almshouses : 16 W. R.
841.
Disentailing Deed.
Where the property taken by the company is entailed, it is necessary for the
purposes of payment out under the Act of the purchase-money that a disentailing
deed should be executed : Be Butler's Will (L. C. for M. R.), L. R. 16 Eq. 480 ;
Be Broadwood's Settled Estates, L. R. 1 Ch. D. 438 ; contra. South Eastern By.
Co., 30 Beav. 215 ; Notley v. Palmer, L. R. 1 Eq. 241 ; Be Eolden, 10 Jur.
(N.S.) 308 ; Be Wood, L. K. 20 Eq. 372 ; Be Bow, L. R. 17 Eq. 300.
And under the present practice a disentaiUng deed has to be executed.
Interim Investment — Sect. 70.
Until the money can be applied to one of the purposes mentioned in the
69th section it may be invested by order made upon petition in the purchase of
«' 3 per Cent. Consolidated Annuities, or Reduced Bank Annuities, or in Governrnent
or real securities ; and the interest, dividends, and annual proceeds thereof paid
to the party who would for the time being have been entitled to the rents and
profits of the land" : 8 & 9 Vict. c. 18, s. 70 ; see Order, p. 573.
The purchase-money may be invested in any of the investments in which cash
under the control of the Court may be invested : Be Fryer's Settlement, L. R. 20
Eq. 468.
Where an inquiry had been directed whether it would be for the benefit of the
parties interested that purchase-money arising from lands taken by a railway
company should be invested upon mortgage of real estate, and the master had
reported against the security upon general grounds, the Court confirmed the
report: Ex parte FranhVyn, 1 De G. & Sm. 528.
But the Court commonly directs a temporary investment in real securities : Be
Smith's Estate, L. E. 9 Eq. 178 ; Be Lomax, 34 Beav. 294 ; Be Flemon, L. R.
10 Eq. 612.
Where hovvever, there has been an interim investment in stock the investment
upon mortgage security will be treated as a permanent investment, and the com-
pany will not be liable to pay the costs of a subsequent investment in the purchase
of land : Be Flemon, 10 Eq. 612.
The reinvestment of purchase-money upon a mortgage security is not treated
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582 STATUTORY JURISDICTION.
as a permanent investment under sect. 80, and tte company is liable to the costs
of such reinvestment without any condition as to the costs of any iuture permanent
investment : Re Blyth's Trusts, L. R. 16 Bq. 468.
Compensation — Injury, Inconvesiience, Annoyance — Sect. 73.
All sums exceeding £20 payable by the promoters of the undertaking under a
contract, are to be paid into Court, or (in certain cases) to trustees (see sects.
71, 73), and the sums so paid are not to be retained for the use of the contract-
ing party : " Provided always, that it shall be in the discretion of the Court of
Chancery in England, or the Court of Exchequer in Ireland, or the said trustees,
as the case may be, to allot to any tenant for life, or for any other partial
or qualified estate for his own use, a portion of the sum so paid into the "bank, or
to such trustees as aforesaid, as compensation for any injury, inconvenience, or
annoyance which he may be considered to sustain, independently of the actual
value of the lands to be taken, and of the damage occasioned to the lands held
therewith by reason of the taking of such lands and the making of the works " :
8 & 9 Vict. c. 18, s. 73.
Compensation — Leases for Lives and Years, &o. — Sect. 74.
Where any purchase-money or compensation paid into Court shall have been
paid in respect of any lease for a life or lives or years, or for a life or lives and years,
or any estate in lands less than the whole fee simple thereof, or of any reversion
dependent on any such lease or estate, it shall be lawful for the Court of Chancery
in England, or the Court of Exchequer in Ireland, on the petition of any party inte-
rested in such money, to order that the same shall be laid out, invested, accumulated,
and paid in such manner as the said Court may consider will give to the parties
interested in such money the same benefit therefrom as they might lawfully have
had from the lease, estate, or reversion in respect of which such money shall have
been paid, or as near thereto as may be : 8 & 9 Vict. c. 18, s. 74.
Lessors and lessees should deal separately with the company in respect of their
interests, for the Court has no jurisdiction to apportion the capital of the purchase-
money between them : Ex parte Ward, 2 De G. & Sm. 4, cited in Morgan, 41.
Whfere the income of purchase-money arising from leaseholds taken under the
Lands Clauses Act is insufScient to give the tenant for life the same income that
would have arisen if the lease had continued in existence, the Court has directed
the deficiency to be made good out of the corpus : Jefferys v. Connor, 28 Beav.
328 ; Be Pfleger, L. R. 6 Eq. 426 ; Order, p. 576.
In such a case the Court has directed a Government annuity equal to the net
income of the leaseholds to be purchased, and if the fund were insufficient for the
purpose, then that the dividends should be paid to the tenant for life, and the
principal half-yearly divided by the number of years unexpired of the term, with
directions for sale of part of the stock invested: Re Ffleger, supra; see also
lAttlewood V. Pattison, 10 Jur. (N.S.) 873.
And the Court may make an order referring it to an actuary to ascertain the
proper proportions : Re Ghamberlain, Morgan, 4th ed. 41, n. ; Re Phillips, supra.
So, too, where leaseholds were charged with an annuity, and the purchase-
money was insufficient to discharge it, the annuity was ordered to be kept down
by the sale from time to time of part of the fund: Hx parte Wilkinson, 3 De
G, & Sm. 633 ; Order, p. 575.
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LANDS CLAUSES CONSOLIDATION ACTS. 583
Where a company has taken land subject to a building lease granted at less
than a rack rent, and compensation for the reversion subject to the lease has been
paid into Court, the Court will only direct payment to the tenant for life of so
much of the dividends as equal the reserved rents, directing the remainder to
accumulate till the end of the lease, with liberty then to apply : Be WooUon's
Settlement, L. E. 1 Eq. 589 ; Order, p. 576.
A similar rule is adopted where the land purchased was at the time of purchase
subject to a beneficial lease : Ex parte Dean of Oloucester, 15 Jur. 239.
So, too, where a lease originally granted at a rack rent has become more valu-
able : Be Mette's Estate, L. E. 7 Eq. 72.
But where a lease was granted at less than a rack rent in consideration of a
covenant to lay out money in repairs and improvements, the tenant for life was
held entitled to the whole dividends of the purchase-money : Be StetvarcPs Estate,
1 Drew. 636. ,
Where in consequence of renewable leaseholds being under notice to be taken by
a company the lease was not renewed, but the company proved abortive, and another
company purchased the leaseholds, the vendors were held not to be entitled to any
part of the purchase-money as compensation for the fine which they had omitted
to take in consequence of the notice from the first company : Ex parte Dean and
0/iapter of Westminster, 18 Jur. 1113.
Costs.
Costs of Purchase, Investment, and Beinvestment — Sect. 80.
In all cases of moneys deposited in the bank under the provisions of this or the
special Act, or any Act incorporated therewith, except where the moneys shall
have been deposited by reason of the wilful refusal of the party entitled thereto
to receive the same, or to convey, or release, &c., the Court may order the costs of
the following matters, including therein all reasonable charges and expenses inci-
dent thereto, to be paid by the promoters of the undertaking, (that is to say,) the
costs of the purchase or taking of the lands, or which shall have been incurred in
consequence thereof (other^ than such costs as are by the Act otherwise provided
for), and the costs of the investments of such moneys in Government or real
securities, and of the reinvestment thereof in the purchase of other lands, and
also the costs of obtaining the proper orders for any of the purposes aforesaid, and
of the orders for the payment of the dividends and interest of the securities upon
which such moneys shall be invested, and of all proceedings relating thereto,
except such as are occasioned by litigation between adverse claimants : 8 & 9
Vict. c. 18, s. 80.
As to the meaning of " the Special Act," see Morgan, 47, 32. As to what is
considered " wilful refusal," see cases cited in Dan. 1874. And as to costs, which
are comprised in the words, " costs, charges, and expenses incident thereto," see
Dan. 1076 ; Morgan, 48.
The common form of order for taxation and payment of costs by a company
ought not to be varied, although under the order prospective and periodical sales
of stock will be necessary : Ex parte London, Chatham, and Dover By. Co., 14
W. E. 507.
And the costs payable by a company under the 69th section includes the costs
of a power of attorney given by persons entitled to the income of the purchase-
money : Ex parte Incumbent of Guilden Sutton, 8 De G. M. & G. 380.
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584 STATUTOEY JUEISDICTION.
And where on a sale of stock for the purpose of investnlent in land the broker-
age had been deducted from the fund, it was ordered to be repaid by the company
to the petitioners : Expa/rte Earbord, 17 Jur. 1045 ; citdd in Dan. 1877.
As to reinvestment, the company must also pay the costs of applying the
purchase-money to the redemption of land-tax, the enfranchisement of copyholds,
and permanent improvements.
But the company is not liable to pay the costs of applying the purchase-money
in discharge of an incumbrance on other lands : Ex parte Corporation of London,
L. E. 5 Eq. 418.
Where sums paid in by different companies are invested in one estate, the usual
order is that companies do pay the costs of the reinvestment equally, except the
costs of the ad valorem stamp and surveyor's fee, which will be apportioned between
the purchase-moneys : Hx pwrte Bishop of London, 2 De G. F. & J. 14 ; Ee
Merton Coll., Oxfmd, 33 Beav. 257 ; 10 Jur. f N.S.) 222 ; Ex parte Corporation
of Lmdon, L. E. 5 Eq. 418.
Where there is great inequality in the amounts to be contributed the Court
has ordered the costs of the reinvestment to be apportioned rateably : Ex parte
Dean of Christ Church, 9 W. E. 474 ; Ex jjarte Governors of St. Bartholomew's
Hospital, L. E. 20 Eq. 369.
And where a larger sum is invested than the sum paid in by the company, the
Court will direct that the costs payable by the company shall not be increased by
it : Ex parte King's College, Cambridge, 5 De G. & Sm. 621.
The costs of one application only for reinvestment in land will be allowed unless
it appear to the Court that it is for the benefit of the parties interested in the
moneys that the same should be reinvested in the purchase of lands in different
sums and at different times ; in which case the Court, if it think fit, may order the
costs of any such reinvestment to be paid by the promoters of the undertaking :
8 & 9 Vict. c. 18, s. 80.
The costs of three successive reinvestments in land have been ordered to be paid
by the company : Jones v. Lewis, 2 Mac. & G. 163 ; Merchant Taylors' Company,
10 Beav. 485.
The company is entitled to have the words " upon the approval and execution
of the conveyance " inserted in the order for payment of costs : Ex parte Eton
College, 7 W. E. 710.
The omission of the usual words " except such costs as are occasioned by litiga-
tion between adverse claimants," ought not to be ordered except it is quite clear
that no costs could have been occasioned by such litigation : Be Cant, 1 De G.
F. & J. 153 ; 6 Jur. (N.S.) 183 ; Be Courts of Justice Commissioners, W. N,
(1868), 124.
The word " such " refers not to proceedings, but to costs ; Be Cant, supra.
The company must pay any costs occasioned by the lands taken being the
subject of an administration suit : Dan. 5th ed. 1876, and cases there cited.
And where the object of the petition is only to transfer the fund to the credit
of a cause, the petitioner should apply without serving the other parties : Ibid.
Where the fund has been carried to the credit of the cause, but the account was
not also intituled in the matter of the Act, the Court has no jurisdiction to order
the company to pay costs : Brown v. Eenwick, 14 W. E. 257 ; Fisher v. Fisher,
17 Eq. 340.
The company must pay the costs of an attempted reinvestment in land,
although it may have failed through a defect of the vendor's title : Be Holywell,
U Jur. (N.S.) 579 ; 2 Dr. & Sm. 463.
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LANDS CLAUSES CONSOLIDATION ACTS. 585
And have been ordered to pay the costs of an order directing the application of
the purchase-money in improving the supply of water, to a town where the pro-
perty purchased was situate : Lathropp's Charity, L. E. 1 Eq. 467.
Where the tenant for life had refused the amount of purchase-money offered by
the company, and the matter had been referred to arbitration, the arbitrator
awarding less than the sum offered, the tenant for life was held entitled out of the
purchase-money to his costs inctirred of and incident to the arbitration : Re
Avhrey's Estate, 17 Jur. 1874.
Upon a petition for investment of the purchase-money and payment of the
income to the tenant for life, persons having charges prior to the life estate need
not be served ; and if served the costs will not be allowed against the company :
Re Morris' Settled Estate, L. B. 20 Eq. 470.
And in general upon a petition simply for the reinvestment of money in land,
where there are mortgagees or annuitants whose rights are not otherwise affected
by the petition, the proper course is to serve such parties with a copy of the
petition, and to pay them forty shillings costs : Re Qore Langton's Estate, L. E.
10 Ch. 328.
And the rule applies to cases of payment out of Court to persons entitled sub-
ject to incumbrances : Re Ealstead United Charities, L. E. 20 Eq. 48.
Costs of C&nteyance — Sect. 83.
If the promoters of the undertaking and the party entitled to the costs of con-
veyances of land purchased under the Land Clauses Act, or the special Act, or
any Act incorporated therewith, shall not agree as to the amount, such costs are to
be taxed by one of the taxing masters, upon an order to be obtained upon petition
in a summary way by either of the parties ; and the promoters of the undertaking
shall pay what the master shall certify to be due, &c. See sects. 81, 82, 83 ;
Order, p. 578.
Investment by Promotbes of Undektaking.
Jiejpayment of Deposit — Sect. 87.
The promoters of the undertaking are allowed to enter upon lands before pur-
chase, on making deposit by way of security and giving bond (sect. 85). The
money so deposited is to be paid into Court (sect. 86), " and the same may on the
application by petition of the promoters of the undertaking be ordered to be
invested in Bank Annuities or Government securities, and accumulated ; and upon
the condition of such bond being fully performed, it shall be lawful for the Court
of Chancery in England or the Court of Exchequer in Ireland, upon the like
application, to order the money so deposited in the funds in which the same shall
have been invested, together with the accumulations thereof, to be repaid or trans-
ferred to the promoters of the undertaking, or if such conditions shall not be fully
performed it shall be lawful for the said Court to order the same to be applied in
such manner as it shall think fit for the benefit of the parties for whose security
the same shall have been deposited ": 8 & 9 Vict. c. 18, s. 87.
The landowner is entitled to his costs of appearing on the petition for repayment
of the deposit ; and he must either be made a co-petitioner or the petition must
be served upon him: Dan. 5th ed. 1885, citing Ex parte Stevens, 2 Ph. 772; Ex
parte South Wales Ry. Co., 6 By. Cas. 151 ; and see Re Tottenham and Hamp-
shire Ry. Co., 14 W. E. 669.
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586 STATUTORX JDRISDICTIOK.
But on application by the promoters for investment, the landowner need not be
served: Ex parte Carmarthen and Cardigan By. Co., 2 New Rep. 515.
The deposit is not subject to any lien for costs of the vendor : Mx parte Stevens,
a Ph. 772 ; 16 Sim. 165.
And although an award made under the Act may be disputed by the land-
owner, the deposit will be paid out to the promoters : He Fooks, 2 Mac. & G. 357 ;
see, too, Ex parte Great Northern Ry. Co., 16 Sim. 169.
Where the order for payment of the deposit is made to the secretary of the pro-
moters, the seal of the company to the petition need not be verified : Ex parte
London, Chatham, and Dover Ry. Co., 8 W. R. 636.
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C 587
CHAPTER XXXVII.
THE TEUSTEE BELIEF ACTS.
10 & 11 Vict. c. 96 ; 12 & 13 Vict. c. 74.
Costs of Trustee and Tenant for Life — Payment of Income to Tenant
for Life. ,
Let it be referred to the taxing master to tax B. [the trustee] his
costs, charges, and expenses properly inciirred [in, ahout, and prelimi-
nary to the transfer of the funds hereinafter mentioned into Court,
and to tax the petitioner A. [the tenant for life] and the said B. their
costs of this petition, and consequent thereon, as between solicitor and
client. Let so much of the £ — annuities in Court to the credit of, &c.,
as will raise the said costs, and costs, charges, and expenses of the
said B., of the transfer into Court of the said funds, be sold, and out
of the money to arise by such sale the said costs be paid to Mr. — ,
the solicitor of the said B. Let, out of the interest as it accrues due
on the said annuities and on the residue thereof, the said costs of this
petition be paid, &c. Let the residue of the said interest, and the in-
terest as it accrues due on the residue of the said — ■ annuities, during
the life of the petitioner A., be paid to the said A., or to his legal per-
sonal representatives, until further notice. Be Whitton, L. R. 8 Eq.
352.
Inquiry as to Parties interested.
Let an inquiry be made who are the parties entitled to the —
annuities [or, — cash] in Court, to the credit, &c., in the petition men-
tioned, and in what shares and proportions. Adjourn further hearing
of petition until after inquiry shall have been made.
Inquiry mthout prejudice to Suit.
Let an inquiry be made (but without prejudice to the rights of the
petitioners to file such bill as they may be advised) who are the par-
ties entitled to the sum of £2000 cash, on the credit, &c. Adjourn
further hearing of petition until after inquiry made. Be Sharpe, 15
Sim. 470.
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588 STATUTORY JURISDICTION.
Inquiries — Next of Kin — Persons designated by Testator — Appointment to
represent Estates of Deceased Persons.
Let tLe following inquiries be made : —
1. Whether Samuel Eybold Allen, the son of the testator, William
Allen, is dead, and when he died, and whether he left any and what
child or children, and if dead [if dead] whether he has any [legal]
personal representatives or representative. 2. Who were the next of
kin of the testator William Allen living at the time of his decease,
and whether any and which of them have since died, and who are the
legal personal representatives of such of them as are dead. 3. Whether
there were any and what children of A. B. deceased. 4. Who were the
persons meant by the names and descriptions of — , &c. 6. When
and in what manner A. B. and C. D. became possessed of the sum of
£ — and £ — transferred into Court and standing to the credit of, &c.,
and from what sources the same respectively arose.
Appoint the petitioner A. B. to represent the testator William
Allen, and P. H. to represent the estate of C. A., for the purposes of
these inquiries. Me Allen, Kay, App. 51.
Go-Trustee incapable of transferring — Order for Transfer into Court.
It appearing to the satisfaction of the Court that the petitioners
T. B. and J. J. B. are jointly with the Eev. J. B. in the petition
named trustees under the vsdll of the testator T. B. of the sum of
£33,708 14s. Sd. Bank £3 per Cent. Annuities, and £10,742 like An-
nuities, standing in the names of the petitioners T. B. and J. J. B. and
the Eev. J. B. in the books of the Governor and Company of the Bank
of England, and the Eev. J. B. is incapable through illness of joining
in a transfer thereof. Let the right to transfer the said £ — Bank
Annuities, and to receive the dividends and income thereof, vest in
the petitioners T. B. and J. J. B. Let the petitioners T. B. and J. J. B.
be at liberty to transfer the said £33,708 14«. 6d. Bank Annuities into
Court to the credit of, &o. Be Broadwood, 8 L. T. (N.S.) 632.
Similar Order — Co-Trustee Lunatic — Taxation and Payment of Costs.
Eefer to the taxing master to tax petitioners their costs as between
solicitor and client of the application, including therein any costs,
charges, and expenses properly incurred by them in relation to the
fund, (fee, petitioners to give credit for any sum already paid on ac-
count of costs. — ^Balance to be paid and retained out of dividends if
sufficient, and if insufficient out of stock. — And it appearing to the
satisfaction of the Court that the petitioners E. W. and T. E. M. are
jointly with E. H. M. in tho petition named executors of the will of
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THE TRUSTEE RELIEF ACTS. 589
E. H. the testator, and are trustees of the sum of £896 16*. lOd.
Bank £3 per Cent. Annuities standing in the name of E. H., of — ,
in the books of the Governor and Company of the Bank of England,
and that the said E. H . M. is incapable of making a transfer of such
Bank Annuities, Let the right to transfer the said Bank Annuities
and to receive the dividends and income thereof vest in the peti-
tioners G. W., and Eebecoa his wife, and'T, E. M. Let the petitioners
G-. W., and E. his wife, and T. E. M., be at liberty to transfer the
said sum of £895 16«. Wd. Bank £3 per Cent. Annuities, or the
balance thereof after the said sale, for costs (in the event of such
sale), and the balance of any dividends, &c., into Court to the credit
of, &c. Be Walker (M. E.), Feb. 22, 1873.
Payment into Couut — Affidavit.
All trustees, executors, administrators, or other persons having in their hands
any moneys belonging to any trust whatsoever, or the major part of them, are to
be at liberty, on filing an affidavit, to pay the same into Court ; and all trustees
or other persons having any annuities or stocks standing in their names in the
books of the Governor and Company of the Bank of England, or of the East
India Company, or South Sea Company, or any Government or Parliamentary
securities standing in their names, or in the names of any deceased persons of
whom they shall be personal representatives, upon any trusts whatsoever, or the
major part of them, are at liberty to transfer the same into Court : 10 & 11 Vict.
c. 96, s. 1.
If upon the petition presented it appear to the judge that any moneys, an-
nuities, stocks, or securities are vested in any persons as trustees, executors, or
administrators, or otherwise, upon trusts within the meaning of 10 & 11 Vict.
c. 96, and that the major part of such persons are desirous of transferring or pay-
ing the same into Court, but that for any reason the concurrence of the other or
others of them cannot be had, the judge shall order the transfer or payment to
be made by the major part of such persons without the concurrence of the other
or others of them ; and where any such moneys, or Government or Parliamenfciry
securities are deposited with any banker, broker, or other depositary, the judge
may order a payment or delivery of such moneys, Government or Parhamentary
securities to the major part of such trustees, executors, administrators, or other
persons as aforesaid, for the purpose of being paid or delivered into Court, &c. :
12 & 13 Vict. 0. 74.
" A trustee or other person desiring to pay money or transfer securities into, or
to deposit securities in Court, under the Act 10 & 11 Vict. c. 96, shall file an
affidavit intituled In the matter of the same Act, and In the matter of the trust,
and setting forth :
(1.) His own name and address.
(2.) The, place where he is to be served with any petition, summons, or
order, or with notice of any proceeding relating to such money or
securities.
(3.) The amount of money, and description and amount of securities which
he proposes to pay or transfer into or deposit in Court, and the credit
to which he wishes it to be placed ; and if such money or securities
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590 STATDTOEY JUEISDICTION.
are chargeable with legacy or succession duty, a statement whether
such duty, or any part thereof, has or has not been paid.
(4.) A short description of the trust, and of the instrument creating it.
(5.) The names of the persons interested in or entitled to the money or
securities, and their places of residence, to the best of his knowledge
and belief.
(6.) His submission to answer all such inquiries relating to the application of
the money or securities paid or transfeired into or deposited in
Court under the same Act, as the Court or judge may make or
direct.
(7.) A statement whether the money so to be paid into Court, or the divi-
dends on the securities so to be transferred into or deposited in Court,
and all accumulation of dividends thereon, are desired to be invested
in Consolidated £3 per Cent. Annuities, or Eeduced £3 per Cent. An-
nuities, or New £3 per Cent. Annuities, or whether it is deemed
unnecessary so to invest the same, or to place the same on deposit" :
Chancery Funds Eules, 1874, rule 34.
The fund should be paid or transferred to a separate account ; and it should
not be paid to the general account of an estate, or to the account of the trusts of
a will : Dan. 5th ed. 1788 ; Re Joseph, 1 1 Beav. 625 ; Ee EvereU, 12 Beav. 485 ;
He Wright, 15 Beav. 367.
Discharge of Trustee.
Where a trustee pays into Court a sum of money under the Act, he is only
discharged as to the money so paid in ; the payment in does not deprive the
persons entitled of their right to file a bill for the purpose of having their rights
declared; and the payment in ought not to be made where the trustee has
notice that it is intended to file a bill against him : Dan. 5th ed. 1789, and cases
cited.
Notice by Trustee.
The person having made the payment, transfer, or deposit, shall forthwith
give notice thereof to the several persons named in his affidavit as interested in or
entitled to the fund : Chancery Funds (Amended) Orders, 1874, rule 5.
Petition — Summons — Service.
The persons interested, or any of them, may apply by petition, or, in cases where
the trust fund does not exceed £300 cash or £300 stock, by summons, as occasion
may require, respecting the investment, payment out, or distribution of the fund,
or of the dividends or interest thereof: Chancery Funds (Amended) Orders, 1874,
rule 6.
The person who has made the payment or transfer shall be served with notice
of any application made to the Court or to the judge in Chambers respecting the
fund, or the dividends or interest thereof, by any person interested therein or
entitled thereto : Chancery Funds (Amended) Orders, 1874, rule 7.
The persons interested in or entitled to the fund shall be served with notice
of any application maHe by the trustee to the Court or to the judge in Chambers
respecting the fiiml in Court, or the interest or dividends thereof: Chancery
Funds (Amended) Orders, 1874, rule 8.
Although a trustee may present the petition for payment out, the cestuis qm
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THE TRUSTEE RELIEF ACTS. 591
trust are the proper pei-sons to make the application, and the Court will dis-
courage applications by the trustee : Be Gazneau, 2 K. & J. 249 ; Be Hutchinson,
1 Dr. & Sm. 27.
And in making the order upon the petition of the trustee, the Court has
given him only respondent's costs : Ibid. ; and although the petition of the
trustee was presented at the request of one of the beneficiaries: lie Hutchinson,
supra.
Where an executor who had paid the balance of his testator's assets into Court
under the Acts afterwards discovered that there were numerous debts unpaid, the
Court ordered the money to be paid out to him on his undertaking properly to
apply the fund : Be Tmrnay, 3 De G. & Sm. 677.
Where the cestuis que trust are numerous, the Court has dispensed with
service of the petition being made upon aU of them : Be Colson, 2 W. R. Ill ;
Be Hodges, 6 W. K. 487.
Upon an application for payment of income to the tenant for life, the remain-
derman need not be served : Be Whiting, 7 Jur. (N.S.) 754 ; 9 W. R. 830.
The Court has jurisdiction to order service of the petition out of the jurisdic-
tion : Be Hatiey's Trusts, L. R. 10 Ch. 275.
Effect of Oeder — Soit — Jueisdiction of Court upon Petition.
Such orders as shall seem fit shall from time to time be made by the Court of
Chancery in respect of the trust moneys, &c., so paid in, &o., and for the ad-
ministration of any such trusts generally, upon a petition, &o. ; " and every order
made upon any such petition shall have the same authority and effect, and
shall be enforced and subject to rehearing and appeal, in the same manner as if
the same had been made in a suit regularly instituted in the Couit ; and if it
shall appear that any such trust funds cannot be safely distributed without the
institution of one or more suit or suits, the Lord Chancellor or Master of the
Rolls may direct any such suit or suits to be instituted": 10 & 11 Yict. c. 9C,
s. 2.
The Court may decide upon petition between the litigated rights of parties and
the validity of a deed, when satisfied that the case can be properly presented to
the Court by way of petition : Be Bloyes' Trusts, 1 Mac. & G. 488 ; 14 Jur. 49 ;
Lewis V. Hillman, 3 H. L. C. 607 ; Be Walker, 16 Jur. 1154; Be Balton, 1 De
G. M. & G. 265 ; may direct inquiries : Be Woods, 15 Sim. 469 ; Be Sharpe, Ibid.
470 ; Order, p. 587 ; Be Magawley, 5 De G. & Sm. 1, 6 : Be Morgan, 2 W. R.
439, cited in Daniell, 1793 : and may direct an issue to try any question as
to security, or the like : Be Allen, Kay, App. 51 ; Order, p. 588 ; and deeds
may be reformed and mistakes in a settlement rectified where the proper parties
are before the Court : Be Hoards Trust, 4 Giff. 254 ; Be De la Touche, L. E. 10
Eq. 599 ; Order, p. 455 ; see also observations in Be Malet, 8 Jur. (N.S.) 288.
But where the questions arising have to be determined upon other grounds than
those appearing in the affidavits, the Court will not decide upon the validity of
the deed : Be Way's Settlement, 10 Jur. (N.S.) 1166 ; Be Bloyes' Trusts, supra.
The Act only empowers the Court to authorize a suit when desirable for the
satisfaction of the Court : Be Harris, 18 Jur. 721.
Costs.
Where the trustee has not deducted his costs of paying the fund into Court,
his costs, charges, and expenses properly incurred in, about, and preliminary
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592 STATUTORY JURISDICTION.
to the payment into Court are payable out of the capital of the fund. His
costs of appearance on a petition for payment of dividends to tenant for life are
payable out of income : Re WTiitton, L. R. 8 Bq. 352 ; see Order, p. 587.
The trustee is entitled upon an application for payment out to his costs as
between solicitor and client : Ee Gawthorne, 12 Beav. 56 ; Re Ersldne, 1 K. & J.
302 ; 1 Jur. (N.S.) 156.
And where an assurance company having received notice of conflicting claims
to policy-moneys, paid the same into Court under the Acts, they were held
entitled to their costs of appearance as between solicitor and client : Re Webb's
Charity, L. R. 2 Eq. 456 ; Re Cohbe, 15 W. R. 29.
Where upon payment into Court the trustee had retained a sum in discharge
of costs incurred, it was ordered to be set off against the costs allowed by the
Court of his appearance upon the petition for payment out, and the whole costs
were directed to be taxed : Re Hue's Trust, 27 Beav. 337.
Where a trustee who ought to have paid a fund into Court under the Acts did
not do so, and caused the institution of a suit, he was allowed out of the funds
only such costs as he would have been entitled to if he had paid the funds into
Court, and the costs of appearing on the petition : Ounndl v. Wlvitear, L. R. 10
Eq. 664.
And if the title of the persons interested is clear, the trustees may be deprived
of their costs : Dan. 5th ed. 1795 ; Re Cull's Trusts, L. R. 20 Eq. 561.
The costs of petitions by tenants for life for payment of income are payable out
of income : Re Marner's Trusts, L. R. 3 Eq. 432 ; Re Whitton's Trusts, L. R.
8 Eq. 352 ; Re Smith's Trusts, L. R. 9 Eq. 374 ; Re Mason, L. E. 12 Eq. Ill ; Re
Evans' Trusts, L. E. 7 Ch. 609.
And the rule applies to the costs of the trustee, and all other necessary parties
to such petition: Re Mason's Trusts, L. R. 12 Eq. Ill ; Re Evans' Trusts, L. R.
7 Ch. 609.
Where the title of the tenant for life is clear, the trustees ought not to
appear upon a petition merely affecting income : Re Evans' Trusts, swpra.
And in such cases the remainderman ought not to be served : Re Whiting,
7 Jur. (N.S.) 754.
Parties served come to the Court at the peril of costs : Re Tyler, 2 Jur. (N.S.)
927 ; 4 W. R. 524; Re Smith, 3 Jur. (N.S.) 659.
Duty.
Every petition for dealing with money or securities in Court, chargeable with
duty payable to the revenue under the Acts relating to legacy or succession
duty, or the dividends on such securities, shall contain a statement whether such
duty or any part thereof has or has not been paid : Chancery Funds (Amended)
Orders, 1874, rule 11.
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( 593 )
CHAPTER XXXVIir.
THE TEUSTEE ACTS, 1850 and 1852.
13 & 14 Vict. c. 60 ; 15 & 16 Vigt. c. 55.
Lunatics — Persons of Unsound Mind.
The jurisdiction usually vested in the Lord Ckancellor or in the Lords Justices
of Appeal in Chancery, or either of them, in relation to the custody of the persons
and estates of idiots, lunatics, and persons of unsound mind, is not transferred to
or vested in the High Court of Justice : Judicature Act, 1873 (36 & 37 Vict.
0. 66), s. 17.
" When any lunatic or person of unsound mind shall he seised or possessed of
any lands upon any trust, or by way of mortgage, it shall be lawful for the Lord
Chancellor, intrusted by virtue of the Queen's sign manual with the care of the
persons and estates of lunatics," (and Lords Justices by 15 & 16 Vict. c. 87, s. 15)
" to make an order that such lands be vested in such person or persons, in such
manner and for such estate as he shall direct ; and the order shall have the same
effect as if the trustee or mortgagee had been sane, and had duly executed a
conveyance or assignment of the lands in the same manner for the same estate " :
13 & 14 Vict. c. 60, s. 3.
When any lunatic or person of unsound mind shall be entitled to any contin-
gent right upon any trust, or by way of mortgage, it shall be lawful for the Lord
Chancellor, intrusted as aforesaid, to make an order wholly releasing such lands
from such contingent right, or disposing of the same to such person or persons as
the said Lord Chancellor shall direct ; and the order shall have the same effect as
if the trustee or mortgagee had been sane, and had duly executed a deed so re-
leasing or disposing of the contingent right : 13 & 14 Vict. c. 60, s. 4.
" When any stock shall be standing in the name of any deceased person whose
personal representative 4s a lunatic or person of unsound mind, or where any chose
in action shall be vested in any lunatic or person of unsound mind as the personal
representative of a deceased person, it shall be lawful for the Lord Chancellor, in-
trusted as aforesaid, to make an order vesting the right to transfer such stock, or
to receive the dividends or income thereof, or to sue for and recover such chose in
action, or any interest in respect thereof, in any person or persons he may
appoint" : 13 & 14 Vict. c. 60, s. 6.
" Where any lunatic or person of unsound mind shall be solely entitled to any
stock or to any chose in action upon any tnost, or by way of mortgage, it shall
be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting
in any person or persons the right to transfer such stock, or to receive the divi-
dends or income thereof, or to sue for and recover such chose in action, or any in-
terest in respect thereof ; and when any person or persons shall be entitled jointly
with any lunatic or person of unsound mind to any stock or chose in action upon
any trust, or by way of mortgage, it shall be lawful for the said Lord Chancellor
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594 STATUTORY JURISDICTION.
to make an order vesting the right to transfer such stock, or to receive the divi-
dends or income thereof, or to sue for and recover such chose in action, or any in-
terest in respect thereof, either in such person or persons so jointly entitled as
aforesaid, or as such last-mentioned person or persons, together with any other
person or persons the said Lord Chancellor may appoint " : 13 & 14 Vict. c. 60, s. 3.
There is jurisdiction, although the lunatic may not have heen so found hy in-
quisition and the lunacy is contested : Be Viall, 8 De Gr. M. & G. 439 ; see also
25 & 26 Vict. c. 86.
Where there is no other disahihty except unsoundness of mind, the application
must he made in lunacy : Dan. 5th ed. 1803, citing Re Ormerod, 3 De Gr. & J.
249 ; Be Qood Intent Society, 2 W. E. 671 ; Jeffryes v. Drysdale, 7 Jur. (N.S.)
657 ; 9 W. R. 428 ; Herring v. OlarJc, L. R. 4 Ch. 167.
And where an order for the appointment of new trustees of the property of a
lunatic, or person of unsound mind, is required, the application should he made
in Chancery as well as in Lunacy : Be Arrowsmith's Trusts, 6 W. E. 642 ; 4 Jur.
(N.S.) 1123; Be Stewart, 8 W. E. 297; Be Boyce, 12 W. R. 359; Herring v.
Clark, L. E. 4 Ch. 167 ; Be Owen, L. R. 4 Ch. 782 ; Be Mason, L. E. 10 Ch. 273.
And in such case service of the petition on the trustee of unsound mind is not
necessary : Be Green, L. E. 10 Ch. 273.
Land.
Bare Trustees — Married Women.
" Upon the death of a bare trustee of any corporeal or incorporeal heredita-
ment of which such trustee was seised in fee simple, such hereditament shall
vest like a chattel real in the legal personal representative from time to time of
such trustee " ; but this provision does not apply to lands registered under the
Land Transfer Act : 38 & 39 Vict. c. 87, s. 48.
" When any freehold or copyhold hereditament shall be vested in a married
woman as a bare trustee, she may convey or surrender the same as if she were a
feme sole" : Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 6.
Land.
Infant Trustee or Mortgagee^Trustee Act, 1850, sects. 7, 8.
Let the lands, &o., comprised in tlie indenture dated, &c. [or, subject
to tlie trusts of the will of A.], whereof the infant A. is seised [or, pos-
sessed] upon a trust [within the meaning of the Trustee Acts, 1850
and 1 852] [or, by way of mortgage] vest in B. for all the estate of the
said A. therein. If contingent right of infant to he released, add : Let the
lands, &c., he wholly released from the contingent right to which
the infant A. is entitled upon trust [or, by way of mortgage], as in
the petition mentioned. If contingent right of infant to vest, add : Let the
contingent right to which the infant A. is entitled upon trust [or, by
way of mortgage] vest, &c.
Legal Estate vested to Uses in Bar of Dower — Sect. 7.
Let the closes, pieces, or parcels of land situate, &c., vest in J. H. G.
and his heirs to such uses, for such estates, and in such manner as the
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THE TRUSTEE ACTS, 1850 and 1852. 595
said J. H. G. shall by any deed or deeds appoint : and in default of
and imtil such appointment, and so far as no sncli appointment sha^l
extend, to tie use of the said J. H. G. and his assigns during his life
without impeachment of waste ; and after the determination of that
estate by any means in , his lifetime to the use of J. W. and his heirs
during the life of J. H. G. in trust for him and his assigns ; and after
the determination of that estate to the use of the said J. H. G., his
heirs and assigns for ever. Ue Lush, 5 De G. & Sm. 436.
"Where any infant shall be seised or possessed of any lands upon any trust, or
by way of mortgage, it shall be lawful for the Court of Chancery to make an order
vesting such lands in such person or persons, in such manner and for such estate
as the said Court shall direct ; and the order shall have the same effect as if the
infant trustee or mortgagee had been twenty-one years of age, and had duly exe-
cuted a conveyance or assignment of the lands in the same manner and for the
same estate " : 13 & 14 Vict. c. 60, s. 7.
The Court has made an order under this section vesting the legal estate in a
purchaser to uses in bar of dower : £e Lush, 5 De Gr. & Sm. 436 ; Order, p. 594 ;
Davey v. Miller, 1 Sm. & Gr. App. 19.
And to vest the legal estate in the petitioners to such uses as they should
appoint, and in default to the use of the petitioners in fee : lie Powell, 4 K. & J.
338.
Where the legal estate was outstanding in the infant heir of an intestate mort-
gagee, and the mortgagor had devised the equity of redemption charged with a
legacy, an order was made vesting " subject to the legacy " : £e Mlerthorpe, 18
Jur. 669.
A vesting order will, if consented to by the protector of the settlement, bar all
estates in remainder, and not pass a mere base fee : Powell v. Mathews, 1 Jur.
(N.S.) 973.
Where a vendor agrees to sell real estate to a company and dies, having devised
his real estate to an infant devisee, the infant is a trustee within the meaning of
the Act, and a vesting order may be made on petition under the Act : Se Lowey's
Will, L. E. 15 Eq. 78 ; see also Se Eussell's Estate, 12 Jur. (N.S.) 224.
" Where any infant shall be entitled to any contingent right in any lands upon
any trust, or by way of mortgage, it shall be lawful for the Court of Chancery to
make an order wholly releasing such lands from such contingent right, or dis-
posing of the same to such person or persons as the said Court shall direct ; and
the order shall have the same effect as if the infant had been twenty-one years of
age, and had duly executed a deed so releasing or disposing of the contingent
right" : 13 & 14 Vict. c. 60, s. 8.
Where a covenant had been entered into by A. to surrender copyholds to the
use of B., and until the surrender should be made A. was to stand seised of the
copyholds " upon trust for and to surrender the same to B.," upon A. going out of
the jurisdiction" without surrendering the case was held to be one of express trust,
and a person appointed under sects 8 and 20 to surrender without a decree for
specific performance : Be ColUngwood, 6 W. E. 536 ; see also Re Gumvng, L. E.
5 Ch. 72.
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596 STATQTORY JUEISDICTION.
Land — Trustees out of Jurisdiction.
Orders under Sects. 9, 10, 11, 12.
If sole Trustee : Let the lands, &o., whereof A. is seised [or, possessed]
upon trust [under the will of — , or under the indenture dated, &c.]
as in the petition mentioned, vest in B. for the estate therein of the
said A. If joint trustee : Let the lands, &c., whereof A. and B. are
seised [or, possessed] jointly with C. upon trust, &c., as in the petition
mentioned, vest in the said A. and B. for the estate therein of the said
A., B., and C. If contingent rights released : Let the lands, &c., be wholly
released from the contingent right therein to which — is entitled
upon trust, &c. If contingent right vested : Let the contingent right to
which — is entitled [jointly with, &c.] upon trust as in the petition
mentioned, vest, &c.
" When any person solely seised or possessed of any lands upon any trust shall
be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall
be lawful for the said Court to make an order vesting such lands in such person
or persons in such manner and for such estate as the said Court shall direct ; and
the order shall have the same effect," &c. : 13 & 14 Vict. c. 60, s. 9 ; see Be
Skitter, 4 W. B. 791 ; Wilkes v. Oroom, 6 De G. M. & G. 205.
" When any person or persons shall be seised or possessed of any lands jointly
with a person out of the jurisdiction, or who cannot be found. It shall be la,wful
for the said Court to make an order vesting the land in the person or persons
so jointly seised or possessed, or in such last-mentioned person or persons in
such manner," &o., " and the order shall have the same effect," &c. : 13 & 14
Vict. c. 60, s. 10 ; see Smith v. Smith, 3 Drew. 72 ; 18 Jur. 1047 ; Be Marquis
of Bute, 5 Jur. (N.S.) 487 ; Be Tempter, 4 N. R. 494, cited in Daniell, 1805;
Be Osborn, L. E. 12 Eq. 392.
The contingent rights of a sole trustee out of the jurisdiction, or who cannot
be found, or of trustees jointly entitled with others out of the jurisdiction, may be
released or disposed of as the Court shall direct : 13 & 14 Vict. c. 60, Ss. 11, 12.
The word " trust " shall not mean the duties incident to an estate conveyed by
way of mortgage : Interpretation clause, s. 2.
And upon a mortgage of real estate to two persons, one of whom went out of
the jurisdiction, the Court was held to have no jurisdiction to make an order
vesting in the purchaser the estate of the absent mortgagee who had not been paid
off: Be Osborn, L. B. 12 Eq. 392.
Land — Deceased Trustees.
Orders wader Sects. 13, 14, 15, and 16.
Under sect. 13 : Let the lands, (fee, situate, &c., whereof A. and B.
were jointly seised [or, possessed] upon trust as in the petition men-
tioned vest in — for the estate of — [the survivor] therein.
Under sect. 14: Let the lands, &c., situate, &o., whereof A. was
seised [or, possessed] upon trust [jointly with — ] as in the petition
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THE TRUSTEE ACTS, 1850 and 1852. 597
mentioned, vest, &c., for the estate of which — if living has or if
dead had therein.
UTtder sect. 15 : Let the lands situate, &c., whereof A. died seised
[or, possessed] upon trust as in the petition mentioned, vest in — for
the estate therein of the said A. at the time of his death [or, for the
estate therein of — the heir [or, devisee] of the said A.]
Under sect. 16, 2/" lands to he released from contingent right: Let the
lands situate, &c., be wholly released and discharged from the contin-
gent right to -which the same are subject in any unborn child or
children of, &c., who upon coming into existence would in respect
thereof have become seised or possessed upon trust, &c., as in the
petition mentioned; or, if contingent right to vest: Let the lauds, &c.,
vesf in — for the estate therein of which any unborn child or children
of — would upon coming into existence, &c.
" Where there shall have been two or more persons jointly seised or possessed
of any lands upon any trust, and it shall be uncertain which of such trustees was
the survivor, it shall be lawful for the Court of Chancery to make an order vest-
ing such lands in such person or persons in such manner and for such estate as
the Court shall direct ; and the order shall have the same effect," &o. : 13 & 14
Vict. c. 60, s. 13.
" Where any one or more person or persons shall have been seised or possessed
of any lands upon any trust, and it shall not be known as to the trustee last
known to have been seised or possessed whether he be Uving or dead, it shall be
lawful for the Court of Chancery to make an order vesting," &c. : sect. 14.
" When any person seised of any lands upon any trust shall have died intestate
as to such lands without an heir, or shall have died and it shall not be known who
is his heir or devisee, it shall be lawful for the Court of Chancery to make an
order vesting such lands in such person or persons," &c., " and the order shall
have the. same effect," &c. : sect 15.
Where a vendor after conveying the equitable estate became seised of the legal
estate and died intestate without an heir, the vendor was held to be a trustee
within the meaning of the Act : Se Wilkinson, 10 Jur. (N.S.) 716.
The word " trust " is not to mean " the duties incident to an estate conveyed
by way of mortgage :" sect. 2. But where land had been conveyed to a mort-
gagee upon trusts for sale and to apply the surplus moneys, a vesting order was
made under the section : He Underwood, 3 K. & J. 745 ; Be Keeler, 9 Jur.
(N.S.) 95.
Where there had been a devise of real estate to a trustee upon trust for sale,
but the trustee had died in the lifetime of testatrix, it was held that in the
absence of the heir of the testatrix the Court had no jurisdiction to make a vesting
order: Gunson v. Simpson, L. R. 5 Eq. 332.
Where a vendor had covenanted to surrender copyholds to a purchaser, and the
purchase-money paid, the vendor dying before surrender, and the customary heir
being of unsound mind, the heir was held to be a trustee for the benefit of the
purchaser, and an order to convey made under the Act : Re Cuming, L. R. 5
Ch. 72.
" When any lands are subject to a contingent right in an unborn person or class
of unborn persons, who, upon coming into existence, would in respect thereof
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5a8 STATUTORY JURISDICTION.
become seised or possessed of such lands upon any trust, it shall be lawful for the
Court of Chancery to make an order which shall wholly release and discharge
such lands froin such contingent right in such unborn person or class of unborn
persons, or to make an order which shall vest in any person or persons," &c. :
sect 16.
Upon a bill filed for specific performance by purchasers against the parties en-
titled under a settlement, a decree was made that, upon payment of the purchase
moneys, the properties should be discharged from the contingent rights of unborn
persons : Hargreaves v. Wright, 1 W. R. 409 ; see also Wake v. Wake, 17 Jur.
545; IW. E. 283.
Land — Teusteb refusing or neglecting to convey or release.
Orders under Sect. 2 of Extension Act.
Let the lands, &c., whereof A. [the trustee who has wilfully re-
fused or neglected, &c.] is solely [or, jointly with B. and C] seised
{or, possessed] \or, wherein A. has a contingent righ.t, &o.J upon trust
as in the petition mentioned, vest in — for the estate therein of the said
A. If contingent right released : Let the lands, &c., wherein the said A.
has a contingent right upon trust, &o., be released from such con-
tingent right.
" Where any person is or shall be jointly or solely seised or possessed of any
lands, or entitled to a contingent right therein upon any trust, and a demand
shall have been made upon such trustee by a person entitled to require a convey-
ance or assignment of such lands, or a duly authorized agent of such last-men-
tioned person, requiring such trustee to convey or assign the same, or to release
such contingent right, it shall be lawful for the Court of Chancery, if the said
Court shall be satisfied that such trustee has wilfully refused or neglected to
convey or assign the said lands for the space of twenty-eight days after .such de-
mand, to make an order vesting such lands in such persons in such maimer and
for such estate as the Court shall direct ; and the said order shall have the same
effect," &c. : 15 & 16 Vict. c. 55, s. 2.
Where a mortgagor had covenanted to surrender copyholds to his mortgagee,
and had neglected to make the surrender within the twenty-eight days, the mort-
gagor was held to be a trustee for the mortgagee, and a vesting order made with-
out a suit for specific performance : see also Re Cuming, L. B. 5 Ch. 72 ; Ee
Baxter, 2 Sm. & Giff. App. 5 ; Re O'DonneU's Trusts, 19 W. E. 522.
And in such a case the order will be made upon the petition of the mortgagee
without service on the mortgagor : Re Crowe's Mortgage, L. E. 13 Eq. 26.
Land — Death op Mortgagee without Possession or Eeoeifi of Eents.
Orders under Sect. 19.
Let the lands, &o., comprised in the indenture dated, &c., and thereby
conveyed by way of mortgage to A., who is since deceased, vest in —
for the estate of the said A. therein [or, for the estate of the heir or
devisee of the said A., or, for the estate of the survivor of the devipees
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THE TRUSTEE ACTS, 1850 and 1852. 599
of the said A., or, for the estate of the said A., or of his heir or
devisee (if any) therein. J
" When any person to whom any lands have been conveyed by way of mort-
gage shall have died without having entered into the possession or into the receipt
of the rents and profits thereof, and the money due in respect of such mortgage
shall have been paid to a person entitled to receive the same, or such last-men-
tioned person shall consent to an order for the re-conveyance of such lands, then,
in any of the following cases, it shall be lawful for the Court of Chancery to
make an order vesting such lands in such person or persons in such manner and
for such estate as the said Court shall direct ; (that is to say,)
Where an heir or devisee of such mortgagee shall be out of the jurisdiction
of the Court of Chancery, or cannot be found :
Where an heir or devisee of such mortgagee shall, upon a demand by a person
entitled to require a conveyance of such lands, or a duly authorized agent
of such last-mentioned person, have stated in writing that he will not
convey the same, or shall not convey the same for the space of twenty-
eight days next after a proper deed for conveying such lands shall have
been tendered to him by a person entitled as aforesaid, or a duly autho-
rized agent of such last-mentioned person :
Where it shall be uncertain which of the several devisees of such mortgagee
was the survivor :
Where it shall he uncertain as to the survivor of several devisees of such
mortgagee, or as to the heir of such mortgagee, whether he be living
or dead :
Where such mortgagee shall have died intestate as to such lands and
without an heir, or shall have died, and it shall not be known who is his
heir or devisee :
And the order of the said Court of Chancery made in any of the foregoing
cases shall have the same effect," &c. : 13 & 14 Vict. c. 60, s. 19. For cases
under this section see Be Boden, 1 De G. M. & Gr. 57 ; 16 Jur. 279 ; Be Lea,
6 W. R. 482 ; Be Hewitt, 27 L. J. 302.
Conveyance, Assignment, and Transfer.
Orders tmder Sects. 20 cmd 21.
" In every case where the Court is enabled to make an order having the effect of
a conveyance or assignment, or having the effect of a release or disposition of the
contingent right of any person or persons, an order appointing a person to convey,
or assign, or release, &c., may be made ; and in every case where the Court is
enabled to make an order vesting the right to transfer any stock transferable in
the hooks of the governor and company of the Bank of England, or of any
other company, &c., an order may be made, if more convenient, directing the
secretary, deputy-secretary, or accountant-general for the time being of the
governor and company of the Bank of England, or any officer of such other
company or society, at once to transfer or join in transferring the stock to the
person or persons to be named in the order," &o. : sect. 20.
. The Courts of the Duchy Chamber of Lancaster, the Court of Chancery in the
county palatine of Lancaster, and the Court of Chancery in the county palatine
of Durham, have jurisdiction to make a similar order as to lands within their
jurisdictions respectively : sect. 21.
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600 STATUTORY JUEISDICTION.
Stock — Trust e,es out of Jurisdictioit.
Joint Trustees— Sole Trustee — Infant — Sect. 22.
It appearing that under an indenture dated, &c. \or, under the
will of — , the testator in the petition named], A. and B. are jointly
entitled with C, who is out of the jurisdiction of this Court [or, can-
not he found, or, concerning whom it is uncertain whether he be living
or dead, or, if under 15 <£ 16 Vict. c. 55, 8. 3, who is an infant] to the —
[describe stock] standing in their names in the books of the governor
and company of the Bank of England upon trust as in. the petition
mentioned, and that the petitioners are beneficially interested in [or,
have been duly appointed trustees of] the said [describe stock]. Let the
right to transfer the said — [and to receive the dividends or income
thereof] vest in the said A. and B. [or, in the said A. and B. jointly
with D.] Let them transfer the said [stock] into their own names,
to be held by them upon the trusts of the said indenture [or, wiU], or
such of the said trusts as are now subsisting or capable of taking
effect. If chose in action : Let the right to sue for and recover the sum
of £ — in the petition mentioned [and any interest in respect thereof ]
vest, &c.
If sole trustee : It appearing, &o., that A., who is out of the jurisdic-
tion [or, cannot be found], is entitled, &o., as sole trustee thereof, and
that the petitioners are beneficially interested in the said — [describe
stock], Let the right to transfer, &o. [and to receive the dividends, &c],
vest, &c. Let them transfer, &c.
Co- Trustee out of Jurisdiction — Dividends to vest during Joint lAves of
Trustees.
Let the right to receive the dividends now due or or hereafter to
accrue due during the joint lives of the petitioners G. P., J. F., and
A. S. on the £ — Bank Stock, or any other sum of Bank Stock standing
in the names of the said petitioners G. P., J. F., and A. S. as three of
the trustees of the indenture dated, &c., jointly with W. E., who is out
of the jurisdiction, vest in the petitioners G. P., J. F., and. A. S.
alone. Peyton's Settlement, 2 De G. & J. 290.
Stock — Trustees out of Juejsmction.
" Where any person or persons shall be jointly entitled with any person out of
the jurisdiction of the Court of Chancery, or who cannot be found, or concerning
whom it shall be uncertain whether he be living or dead, to any stock or chose in
action upon any trust, it shall be lawful for the said Court to make an order
vesting the right to transfer such stock, or to receive the dividends or income
thereof, or to sue for or recover such chose in action, or any interest in respect
thereof, either in such person or persons so jointly entitled as aforesaid, or in such
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THE TEUSTBE ACTS, 1850 and 1852. 601
last-mentioned person or persons together with any person or persons the said
Court may appoint ; and when any sole trustee of any stock or chose in action
shall be out of the jurisdiction of the said Court, or cannot he found, or it shall
be uncertain whether he be living or dead, it shall be lawful for the said Court to
make an order vesting the right to transfer such stock, or to receive the divi-
dends or income thereof, or to sue for and recover such chose in action, or any
interest in respect thereof, in any person or persons the said Court may appoint :"
13 & 14 Vict. c. 60, s. 22.
When any infant shall be solely entitled to any stock upon any trust, it shall
be lawful for the Court of Chancery to make an order vesting in any person or
persons the right to transfer such stock or to receive the dividends or income
thereof; and when any infant shall be entitled jointly with any other person or
persons to any stock upon any trust, it shall be lawful for the said Court to make
an order vesting the right to transfer such stock or to receive the dividends or
income thereof, either in the person or persons jointly entitled with the infant, or
in him or them together with any other person or persons the said Court may
appoint : Trustee Extension Act (15 & 16 Vict. o. 55, s. 3).
Where the husband of an executrix was out of the jurisdiction a vesting
order was made under this section : Ex parte Bradshaw, 2 De G. M. & G. 900.
But where one of the trustees was dead, and it was uncertain whether the other
was alive or not, the Court refused to, treat him as a sole trustee ; Be Randall,
1 Drew. 401 ; Dan. 5th ed. 1810.
Under certain circumstances the Court will vest the right to the stock or chose
in action in the persons beneficially interested : lie Byan, 9 W. E. 137 ; Ex pa/rte
Bradshaw, supra ; but see Re Brass, 4 W. E. 764 ; Re Bourke, 2 De G. J. &
S. 426, cited in Dan. 5th ed. 1810.
Where stock was standing in the na,mes of three trustees and an infant, two of
the trustees being dead and the third out of the jurisdiction, the Court appointed
a guardian, allowed maintenance, and vested the right to receive the dividends
in the guardian during the infant's minority : Re Morgan, 1853, B. 1231 ; Seton,
825.
The words, " to receive the dividends or income thereof," in the 22nd section
have been held to apply to dividends which might accrue during the joint lives of
the trustees, and not to be restricted to dividends due at the date of the order :
Be Peyton's Settlement, 2 De G. & J. 290.
Stock — Sole Trdstee— Eefusal or neglect to teansfee.
Sects. 23 and 24 — Sects. 4 and 5 of Extension Act.
Order under Sect. 23.
It appearing that A. is the sole trustee of the sum of £ — [Bank 3 per
Cent. Annuities] standing in the name of A. in the boots of the governor
and company of the Bank of England by the description of, &c., and
that the said A. has neglected [or, refused] to transfer the said
annuities [and to receive the dividends or income thereof] according
to the direction of B., the person absolutely entitled thereto, for the
space of twenty-eight days next, after a request in writing for that
purpose has been made to him by the said B., Let the sole right to
transfer the said annuities [and to receive the dividends or income
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602 STATUTORY JURISDICTION.
thereof] vest in B. [or, in B. and C] If to new trustee or trustees :
Let him or them transfer the said annuities into his [or, their] own
name [or, names] to be held upon the trusts, &c. If chose in action
vested : Let the right to sue for and recover the sum of £ — , secured
by the indenture dated, &o. [or, any interest in respect of such sum],
vest in, &c.
Stock — Joint Trustee — Befusal or neglect to transfer — Sect. 24.
It appearing, &c., and that A. and B. in the petition named are
the joint trustees of the sum of £ — [Bank Annuities] standing in the
names of, &o., in the books, &c., and that the said A. has neglected [or,
refused], &c., Let the right to transfer, &c. [and to receive the dividends
and income, &c.] vest, &c. Let him or them transfer, &c. If chose in
action vested : Let the right to sue for and recover, &c., vest, &c.
Stock — Sole Name of Deceased — Sect. 25.
It appearing that the petitioners are beneficially interested in [or,
have been appointed trustees of] the sum of £ — standing in the
sole name of A. (deceased) in the books of the governor and company
of the Bank of England by the description, &c., and that B., the
personal representative of A., is out of the jurisdiction [or, cannot be
found, or, that it is uncertain vfhether B., the personal representative
of A., is living or dead, or, that B. has neglected or refused to transfer
such stock, or to receive the dividends or income thereof, for the space
of twenty-eight days, &o.J, Let the right to transfer, &c., and to receive
(fee, vest, &o. Let him or them transfer, &c.
Stock — Neglect or Befusal after Order served — Sect. 4 of the Extension Act.
It appearing that the petitioners are beneficially interested, &c.,
and that A. has neglected [or, refused] to transfer the said — Bank
Annuities [or, to receive the dividends and income thereof] for the
space of tvsrenty-eight days after an order of this Court for that purpose
has been served upon him. Let the right to transfer, &c., and to
receive, &c., vest, &c. Let him or them transfer, &c.
Stock in Sole Name of Deceased Person — Personal Bepresentative
refusing, &c. — Sect. 5 of Extension Act.
It appearing that the petitioners are beneficially interested in [or,
have been appointed trustees of] the sum of £ — standing in the sole
name of A. (deceased) in the books of the governor and company of
the Bank of England by the description, &c., and that B., the personal
representative of A., has neglected [or, refused] to transfer such stock
[and to receive the dividends or income thereof] according to the
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THE TEUSTEE ACTS, 1850 and 1852. 603
direction of C, the person absolutely entitled thereto, for the space of
twenty-eight days after an order of the Court of Chancery for that
purpose has been served upon him. Let the right to transfer, &o., and
to receive, &c., vest, &c.
Stock — Neolect or Eepusal to tbansfee.
" Where any sole trustee of any stock or chose in action shall neglect or refuse
to transfer such stock, or to receive the dividends or income thereof, or to sue for
or receive such chose in action, or any interest in respect thereof, according to the
direction of the person absolutely entitled thereto, for the space of twenty-eight
days next after a request in writing for that purpose shall have been made to him
by the person absolutely entitled thereto, it shall be lawful for the Court of
Chancery to make an order vesting the sole right to transfer such stock, or to
receive the dividends or income thereof, or to sue for and recover such chose in
action, or any interest iu respect thereof, in such person or persons as the said
Court may appoint " : 13 & 14 Vict. c. 60, s. 23.
Where any one of the trustees of any stock or chose in action shall neglect or
refuse, &o., for the space of twenty-eight days, &c., it shall be lawful for the
Court of Chancery to make an order vesting, &c., in the other trustee or trustees,
&c., or in any person or persons whom the said Court may appoint jointly with
such other trustee or trustees : 13 & 14 Vict. c. 60, s. 24.
" When any stock shall be standing in the sole name of any deceased person,
and his or her personal representative shall be out of the jurisdiction of the Court
of Chancery, or cannot be found, or it shall be uncertain whether such personal
representative be living or dead, or such personal representative shall neglect or
refuse, &c., for the space of twenty-eight days, &c., it shall be lawful for the
Court of Chancery to make an order vesting the right to transfer, &c., in any
person or persons whom the said Court may appoint " : 13 & 14 Vict. c. 60, s. 25,
As to the effect of an order vesting the legal right to transfer stock : see sect.
26.
As to the effect of an order vesting the legal right in a chose in action : see sect.
■27.
And as to the effect of an order vesting copyhold lands or appointing any
person to convey : see sect. 28.
" Where any person shall neglect or refuse to transfer any stock, or to receive
the dividends or income thereof, or to sue for or recover any chose in action, or
any interest in respect thereof, for the space of twenty-eight days after an order
of the Court of Chancery for that purpose shall have been served upon him, it
shall be lawful for the Court of Chancery to make an order vesting all the right
of such person to transfer such stock, or to receive the dividends or income thereof,
or to sue for and recover such chose in action, or any interest in respect thereof, in
such person or persons as the said Court may appoint " : 15 & 16 Vict. c. 55, s. 4.
"When any stock shall be standing in the sole name of a deceased person, and
his personal representative shall refuse or neglect to transfer such stock or to re-
ceive the dividends or income thereof for the space of twenty-eight days after an
order of the Court of Chancery for that purpose shall have been served upon him,
it shall be lawful for the Court of Chancery to make an order vesting the right to
transfer such stock, or to receive the dividends or income thereof, in any person
or persons whom the said Court may appoint" : 15 & 16 Vict. c. 55, s. 5.
The words " to receive the dividends or income thereof " in the 23rd section of
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604 STATUTORY JUEISDICTION.
the 13 & 14 Vict. c. 60, have been hpld to apply only to dividends which had ac-
crued prior to the request being made : Re Hartnall, 5 De G. & Sm. 111.
But subsequently they have been held (under the 22nd section) to apply to
puch future dividends as might accrue during the joint lives of the trustees :
Re Peyton's Settlement, 2 De G. & J. 290 ; Order, p. 600.
A tenant for life is absolutely entitled, within the meaning of sects. 23 and 24,
where the application is for payment of dividends : Dan. 5th ed. 1813, citing Re
EwrtnaU ; 6 De G. & Sm. Ill ; 16 Jur. 33. But where the application was for
the transfer of the stock, a "request" made by the tenant for life was held in-
sufiScient : Mackenzie v. Mackenzie, 5 De G. & Sm. 338, 341 ; 16 Jur. 723.
The case of a trustee refusing to obey an order of the Court is not within the
meaning of the 23rd and 24th sections: Ibid.; but see now sect. 4 of Trustee
Extension Act, supra.
A petition under sects. 23 and 24 need not be served on the trustee refusing to
receive the dividends or to transfer the stock : Dan. 5th ed. 1813 ; Re Baxter,
2 Sm. & Giff. App. 5 ; see also Ex parte Russell, 1 Sun. (N.S.) 404.
CoPYHOLPs OR Customary Lauds.
Vesting Order — Sect. 28.
Let the copyhold [or, customary] lands situate, &c., and held of the
manor of — , vest, &c., for all the estate, &c. [see Orders under sects. 32,
34, p. 609]. If conveyance ordered : The Court doth herehy appoint — ■
to convey the copyhold lands, &o. [or, assign the customary lands, &c.],
to — , in the petition named, or as he shall appoint.
Copyholds — Sect. 28.
" Whenever under the provisions of the Act an order has been made vesting
any copyhold or customary lands in any person or persons, and such order shall
be made with the consent of the lord or lady of the manor whereof such lands
are holden, then the lands shall without any surrender or admittance in respect ■
thereof vest accordingly " : 13 & 14 Vict. c. 60, s. 28.
" And whenever under any provisions of the Act an order has been made ap-
pointing any person or persons to convey or assign any copyhold or customary
lands, it shall be lawful for such person or persons to do all acts and execute all
instruments for completing the assurance of such lands ; and all such acts and
instruments so done and executed shall have the same effect, and every lord and
lady of a manor, and every other person, shall, subject to the customs of the
manor and to usual payments, be equally bound and compellable to make admit-
tance to such lands, and to do all other acts for the purpose of completing the
assurance thereof, as if the persons in whose places an appointment shall have
been made, being free from any disability, had duly done and executed such acts
and instruments " : Ibid.
It is not necessary to obtain the consent of the lord of the manor to the vest-
ing order : Re Fltitcroft, 1 Jur. (N.S.) 418 ; PatersouY. Paterson, L. R. 2 Eq. 31 ;
contra. Re Howard, 3 W. R. 605 ; Cooper v. Jones, 2 Jur. (N.S.) 59.
Nor, where the lord of the manor consents, is it necessary for him to appear
upon the application. His written consent verified by affidavit is suflScienti Ayles
V. Cox, 17 Beav. 584.
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THE TRUSTEE ACTS, 18S0 and 1852. 605
Where the purchaser of a lot sold under a decree of the Court presented a peti-
tion for the vesting order, the costs of the order were directed to be paid out of
thQ purchase-money representing that lot : Ayles v. Cox, 17 Beav. 584.
And where a vesting order is obtained without the consent of the lord of the
manor, it does not prejudice the question whether he is entitled to a single or
double fine upon admittance : Paterson v. Paterson, L. R. 2 Eq. 31.
As regards the fines payable under the vesting order, where the copyhold vested
is that of an infant heir : see Paterson v. Paterson, supra, and cases there cited ;
Bristow V. Booth, L. R. 5 0. P. 80 i Order, p. 609.
Lakd — Decree for Sale.
Persons interested declared Trustees — Sect. 29 of Trustee Act, and Sect. 1
of Extension Act.
Upon the application of A. B. by the Chief Clerk's certificate dated,
&c., allowed the purchaser at the price of £ — of the land comprised in
Lot 1, part of the estate sold pursuant to the decree dated, &c., and
upon reading, &c., and the certificate of the payment into Court by the
said A. B. of the sum of £ — , being his purcbase-money, &c.. And it
appearing that the Defendant C. D. is seised [or, possessed] of [or, en-
titled to] a contingent right in the said lands comprised in the said
lot, and the judge being of opinion that the said C. D. is to be deemed
to be so seised [or, possessed, or, entitled] upon a trust within the
meaning of the Trustee Act, 1850, And it appearing that the said
C. D. is an infant, or out of the jurisdiction of this Court, or cannot be
found [or, if no disability, that it is expedient for the purpose of carrying
such sale into effect that an order should be made vesting the said
lands in the purchaser]. Let the said lands vest in the said A. B. the
purchaser for all the estate and interest therein [or, discharged from
the contingent right therein] of the said C. D.
Note. — ^The payment of the purchase-money should be shewn in this
order, and also, if a vesting order is given, the ad valorem duty on the
purchase-money.
Land — Decree for Sale — Vesting Order — Estate Tail harred.
Let such of the lands, &c., comprised in the contract dated, &o., vest
in A. B. as the purchaser thereof for all such estate as the Deft B.
could dispose of therein by a conveyance duly executed by him and
inrolled in accordance with the provisions of an Act passed in the
fourth year of the reign of his late majesty King William the Fourth,
intituled " An Act for the Abolition of Tines and Eecoveries, and for
the Substitution of more simple Modes of Assurance," in bar and ex-
tinguishment of the estate tail therein of the Deft B. under the inden-
ture dated, &c., or otherwise,, and of all estates, rights, interests, and
powers to take effect after the determination or in defeazance of such
estates tail. Parsons v. Beehee, 1861, B. 1296; Seton, 809.
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606 STATUTORY JURISDICTION.
Land — Decree foe Sale.
" When a decree shall have been made by any Court of Equity directing the
sale of any lands for the payment of the debts of a deceased person, pvery person
seised or possessed of such lands, or entitled to a contingent right therein as heir,
or under the will of such deceased debtor, shall be deemed to be so seised or
possessed or entitled, as the case may be, upon a trust within the meaning of
this Act ; and the Court of Chancery is hereby empowered to make an order
wholly discharging the contingent right, under the will of such deceased debtor,
of any unborn person " : 13 & 14 Vict. c. 60, s. 29.
" When any decree or order shall have been made by any Court of Equity direct-
ing the sale of any lands for any purpose whatever, every person seised orpossessed
of such land, or entitled to a contingent right therein, being a party to the suit
or proceeding in which such decree or order shall have been made, and bound
thereby, or being otherwise bound by such decree or order, shall be deemed to be
so seised, or possessed, or entitled (as the case may be) upon a trust within the
meaning of the Trustee Act, 1850 ; and in every such case it shall be lawful for
the Court of Chancery, if the said Court shall think it expedient for the purpose
of carrying such sale into effect, to make an order vesting such lands, or any part
thereof, for such estate as the Court shall think fit, either in any purchaser, or in
such other person as the Court shall direct ; and every such order shall have the
same effect," &c. : Trustee Extension Act (15 & 16 Vict. c. 55), s. 1.
Where copyholds devised to an infant for life, remainder to his first and other
sons in tail, were decreed to be sold to pay the debts of the testator, and an order
had been made under the 1 Will. 4, c. 47, that the guardian of the infant should
surrender them to the purchaser, the purchaser was held entitled to require that
an order should be made discharging the contingent rights of the unborn issue of
the infant : Wood v. Beetlestone, 1 K. & J. 213.
The application for orders under those sections are now made at chambers :
Cons. Ord. 3421, art 4.
And this rule is imperative : Clark v. Ward, 14 W. R. 241.
An order under the Trustee Acts may be made in a cause without a petition :
Wood V. Beetlestone, supra.
The infant heir of a person who has died intestate, leaving real estate, which
he had in his lifetime contracted to sell, is not a constructive trustee for the pur-
chaser within the Act, unless he has been declared so by a decree of the Court :
Re Garpenter, Kay, 418 ; Re Propert, 22 L. J. (Ch.) 948.
Land — After Decree for Specific Performakce, Partition, or
Exchange.
Interests of unborn Persons — Sect. 30.
Declare that the Pit A. [or. Deft B.] is a trustee of the lands, &c.
[description from decree] -within the meaning of the Trustee Act,
1850, and Trustee Extension Act, 1852 [or. Declare that the interests
of the unhorn children of — are the interests of persons vs^ho upon
coming into -existence would be trustees within the meaning of the
Trustee Act, 1850, and Trustee Extension Act, 1852]. Consequential
directions for vesting, or conveyance, or discharging contingent right.
See Order under sect. 29.
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THE TRUSTEE ACTS, 1850 and 1852. 607
Declaration in Suit for Specific Performance ly Purchasers — Contingent
Bights — Same Section.
Dbclaee that upon payment by the Pits [the purchasers] respectively
of their respective purchase-moneys and interest, &c., the interests of
any unborn person or persons in the hereditaments comprised in the
contracts dated, &c., will be the interests of persons, &c. [see last Orderl.
Let upon payment of the purchase-moneys and interest the heredita-
ments comprised in the contracts respectively in respect of which such
several payments shall be made, be wholly released and discharged from
the contingent rights of any such unborn person or persons therein ; and
it appearing that the Defts A. and B. are infants and necessary parties
to the conveyances to be executed of the hereditaments comprised, &c.,
Declare that the said infant Defts upon such payments being made by
the respective Pits as aforesaid, will be trustees for them respectively
within the meaning of the Trustee Act, 1850 : Let upon such payments
being made all proper parties join in conveying the land comprised in
the several contracts to the respective purchasers thereof, or as they
shall direct ; and upon such payments as aforesaid. Let — be appointed
to convey the said lands for all the estate and interest therein of the
infant Defts A. and B., such conveyances to be settled by 'the judge.
Hargreaves v. Wright, 1 W. E. 408 ; Seton, 801.
Specific Performance — Donee of Power of Jointuring — Constructive Trust.
Declare that the Deft the Earl of Momington is within the meaning
of the Trustee Act, 1850, a trustee for the Pit to the extent of her
annuity of £1000 and the arrears thereof, and of all the rights and
interests, estates, and property which were acquired by or vested in
him by the said Deft, under or by virtue of the said indentures dated,
&c. Let W. F. be appointed to execute, &o., in the place and stead of
the said Deft the Earl of Momington. But this order is to be without
prejudice to any question as to the validity against any person or
persons other than the Earl of Momington of the said jointure, &c.
Wellesley v. Wellesley, 4 De Q. M. & G-. 537, 541.
" Where any decree shall have been made by any Court of Equity for the
specific performance of a contract concerning any lands, or for the partition or ex-
change of any lands, or generally when any decree shall be made for the convey-
ance or assignment of any lands, either in cases arising out of the doctrine of
election or otherwise, it shall be lawful for the said Court to declare that any of
the parties to the said suit wherein such decree is made are trustees of such lands,
or any part thereof, within the meaning of this Act, or to declare concerning the
interests of unborn persons who might claim under any party to the said suit, or
under the will or voluntary settlement of any person deceased, who was during
his lifetime a party to the contract or transactions concerning which such decree
is made, that such interests of unborn persons are the interests of .persons who
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608 STATUTOEY JUEISDICTION.
upon coming into existence would he trustees within the meaning of this Act ;
and thereupon it shall be lawful for the Lord Chancellor, intrusted, &c., or the
Court of Chancery, as the case may be, to make such order or orders as to the
estates, rights, and interests of such persons, bom or unborn, as the said Court,
&c., might, under the provisions of this Act, make concerning the estates, rights,
and interests of trustees born or unborn " : 13 & 14 Vict. c.'60, s. 30.
Where in a foreclosure suit an order for sale had been made, it has been held
that all equitable interests are bound by such order) and that it is unnecessary to
vest under the Trustee Acts an infant's equity of redemption in the purchaser or
other person : JRe William^ Estate, 5 De Gr. & Sm. 515.
The word " trust " includes " implied and constructive " trusts (see interpretation
clause of Trustee Act). And where a creditor under authority sold certain shares
of his debtor in a banking company, the debtor, who was out of the jurisdiction,
was held to be constructively a trustee for the purchasers : JJe Angela, 5 De Gr. &
Sm. 278.
And where in a suit for specific performance the donee of a power of jointuring
had been ordered to execute it, and had refused, he was declared a trustee of all
rights, &c., acquired by him under the settlement, and a person appointed to
convey in his place : Wellesley v. Welhsley, 4 De G. M. & G. 537 ; Order, p. 607.
And a vendor who refused to convey has been declared a trustee and upon pay-
ment of the purchase-money his solicitor ordered to convey : Warrender-v. Foster,
1854, B. 373; cited in Seton, 822.
But where a testator had in his lifetime agreed to give to his lessee an option of
purchasing the fee, and the lessee did not declare for the option until after the
testator's death, the infant tenant in tail of the legal estate could not be declared a
trustee without a bill or claim filed for specific performance : He Weeding, 4 Jur.
(N.S.) 707.
Where a covenant had been entered into by A. to surrender copyholds to the
use of B., and until the surrender should be made to A., was to stand seised of the
copyholds " upon trust for and to surrender the same to B." upon A. going out of
the jurisdiction without surrendering, the case was held to be one of express trust,
and a person appointed under sects. 8 and 20 without a decree for specific perform-
ance : Re Oollingwood, 6 W. B. 536.
So, too, where a covenant had been given to surrender copyholds to a purchaser,
and the purchase-money had been paid, although the covenant contained no de-
claration that the vendor should until surrender hold the premises in trust for the
purchaser, upon the death of the vendor, having a customary heir of unsound
mind, a person was appointed to surrender under sects. 2 and 8 without a decree
for specific performance : J?e Cuming, L. E. 5 Ch. 7.
Where there is only a contract for sale a suit is necessary to declare the vendor
a trustee ; but where the contract has been executed by payment of the piu'chase-
money, and a formal covenant to surrender, no suit is necessaiy : S. C.
Appointment of Trustees.
Vesting Order— Sects. 32, 34, 35, of Trustee Act — Sect. 9 of Trustee
Extension Act.
This Court doth hereby appoint A. and B., of, &c., in the petition
named, to be trustees of the will of — , the testator in the petition
named [or, of the indenture dated, &c., in the petition mentioned] in
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THE TEUSTEE ACTS, 1850 amd 1852. 609
the place of — , the deceased trustees or trustee \_or, of — ^, who is out of
the jurisdiction, or, of — , who is desirous of retiring from the trusts
of the said will, or, of the said indenture]. If continuing trustee, add :
in addition to the continuing trustee thereof.
If lands to vest : Let the lands, &c., situate, &c. [general description^
devised [or, bequeathed] by the will of the said testator [or, comprised
in the said indenture dated, &c.] vest in the said A. and B. for all the
estate and interest therein of — , the deceased or retiring trustees [or,
for all the estate and interest by the will of the said testator devised
or bequeathed to the original trustees thereof, or, by the indenture
dated, &o., conveyed and assured to the — ], and be held by the said
A. and B. upon the trusts, &c. [or, such of the said trusts as are now
subsisting or capable of taking effect].
If mortgaged estate to vest : Let the lands situate, &c., comprised in
the indenture dated, &c. [and thereby convieyed or assigned to — by way
of mortgage], vest, &c. Let the right to sue for or recover the sum of
£ — , secured by the said indenture, and any interest in respect thereof,
vest in the said A. and B.
If chases in action generally : Let the right to sue for or recover any
chose in, action subject to the trusts of the said will [or, indenture], and
any interest in respect thereof, vest in the said A. and B.
T'rustee of an Agreement for Settlement.
The Court doth hereby appoint Gr. H. to be trustee of the agreement
for a settlement dated, &c., in the place of the petitioner A. N., who
is desirous of retiring from the trusts thereof, and to act jointly with
B., the continuing trustee of the said agreement. Let the right to sue
in respect of any covenants or agreements contained in the said agree-
ment dated, &c., vest in the said A. N. and B. Be Greenacre (V.-C. J.),
March 1, 1869.
Copyholds — Vesting Order ivithout Prejudice to Fine.
Let A. B. be appointed a trustee of the will of P. P. the elder in
substitution for P. S. the younger deceased. And the petitioners, as
lords of the manor of Woodford, by their counsel consenting, and A. B.
'by his counsel undertaking to admit in any action at law to be brought
by the lords for their fine or fines that he has been admitted to the
copyhold and customary hereditaments hereinafter mentioned. Let,
without prejudice to any question what fine or fines is or are payable
to the lords of the manor in respect of the said hereditaments, the
copyhold or customary hereditaments devised by the will of the said
P. P. the elder and held of the said manor of Woodford, vest in the
said A. B. for the estate of the said P. P. the younger, therein to be
held by the said A. B. upon the existing trusts of the said will. Costs
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610 STATUTORY JURISDICTION.
of petition and of appeal petition and of mandamus reserved until
after the action by the petitioners for the fine or fines shall have been
disposed of: Bristow v. Booth (L. JJ.), May 30, 1866, cited L. E.
5 C. P. 80, 86.
Leaseholds— Unpaid Yendw— Sects. 32 and 34 of Trustee Act.
Let a. and B. be appointed new trustees, &o. Let the leasehold
hereditaments situate, &c., and subject to the trusts of the testator's
will, and which have been contracted to be sold to the London,
Chatham, and Dover Eailway Company, vest [but subject and without
prejudice to the rights of the said company in the said hereditaments]
in the said trustees W. L. and P. P. Be Warlters (V.-C. J.), July 24,
1869.
StocJc — New Trustees — Sect. 35.
It appearing that the petitioners are beneficially interested in the
[lands] stock and chases in action subject to the trusts of the will of —
[or, comprised in the indenture dated, &c.], and that it is expedient to
appoint new trustees or a new trustee of the said will [or, indenture],
and that it is inexpedient [or, difficult, or, impracticable] so to do with-
out the assistance of this Court, the Court doth hereby appoint, &c.
[see Order, p. 608]. And it appearing that the stock subject to the
trusts of the said will [or, of the said indenture] comprises a sum of
£ — [Bank £3 per Cent. Annuities] standing in the names of — in the
books of the governor and company of the Bank of England, by the
description of, &o.. Let the right to call for a transfer of, and to transfer
the said — [Bank Annuities], and to receive the dividends or income
thereof, vest in the said — [tmstees, or, trustee]. Let the said —
transfer the said [Bank Annuities] into their names [or, his name] to be
held by the said — upon the trusts of the said will [or, indenture], or
such of the said trusts as are now subsisting and capable of taking
effect.
Stoch — Bank of England — Fund standing in Name of Non-existent
Incorjporate Body.
Declare that the body or persons described in the bank books as
" The Lords of His Majesty's Eoyal Eegency of Hanover " were
trustees of the £600,000 Bank Annuities in the pleadings mentioned
for the persons entitled thereto under the family law of the 19th
November, 1836, in the bill mentioned. And it appearing that it is
expedient to appoint new trustees of the said sum of Bank Annuities,
and that such appointment cannot be made except by order of this
Court, Let D. H. and J. K. be appointed trustees of the said £600,000
standing in the books of the Bank of England in the name of " The
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THE TRUSTEE A4ITS, 1850 and 1852. 611
Lords of His Majesty's Eoyal Eegency of Hanover." Let the right to
call for a transfer of, and to transfer the said £600,000 Bank Annuities,
and to receive the dividends accrued and to accrue due thereon, vest in
the said D. H. and J. K., and they are to transfer the said annuities
into the names of His Majesty King George the Fifth of Hanover,
H.H. William Adolphus Frederick, Crown Prince of Hanover, H.H.
George William, Duke of Brunswick, &c., to be held by them in trust
for the persons entitled thereto by virtue of the said law or statute
made on the 19th November, 1836. Let the said D. H. and J. K. out
of the dividends pay the Defts their costs of suit, and pay the residue
of the dividends to His Majesty King George the Fifth of Hanover. —
Liberty to apply. King of Hanover v. Bank of England, L. E. 8 Eq.
350.
Appointment of Trustees.
" Whenever it shall he expedient to appoint a new trustee or new trustees, and
it shall be found inexpedient, diflficult, or impracticable so to do without the as-
sistance of the Court of Chancery, it shall be lawful for the said Court of Chan-
cery to make an order appointing a new trustee or new trustees either in substi-
tution for, or in addition to, any existing trustee or trustees " • 13 & 14 Vict.
c. 60, s. 32.
And such order may be made whether there be any existing trustee or not at
the time of making such order: 15 & 16 Vict. c. 55, s. 9.
" It shall be lawful for the said Court of Chancery upon making any order for
appointing a new trustee or new trustees, either by the same or any subsequent
order to direct that any lands subject to the trust shall vest in the person or per-
sons who upon the appointment shall be the trustee or trustees for such estate,
as the Court shall direct ; and such order shall have the same effect," &c. : 13 & 14
Vict. c. 60, s. 34.
" It shall be lawful for the said Court of Chancery, upon making any order for
appointing a new trustee or new trustees, either by the same or by any subse-
quent order, to vest the right to call for a transfer of any stock subject to the
trust, or to receive the dividends or income thereof, or to sue for or recover any
chose in action subject to the trust, or any interest in respect thereof, in the per-
son or persons who upon the appointment shall be the trustee or trustees ": 18
& 14 Vict. c. 60, s. 35.
When any order has been made under the Trustee Act, 1850, vesting the
right to any stock, or vesting the right to transfer any stock, or vesting the
right to call for a transfer of any stock in any person or persons, in every
such case the legal right to transfer such stock shall vest accordingly : 15 & 16
Vict. 0. 55, s. 6.
Except under special circumstances, the Court will not diminish the number of
the trustees originally appointed : Bulkeley v. Earl of Eglinton, 1 Jur. (N.S.)
994 ; Be Ellison, 2 Jur. (N.S.) 62.
And the Court will generally refuse to appoint a sole trustee : Be Dickinson,
1 Jur. (N.S.) 724 ; Be Porter, 2 Jur. (N.S.) 349 ; Be Boberts, 9 W. R. 758.
But where the trust was shortly to be wound up, and there had been but one
trustee originally, a sole trustee has been appointed : Be Beynault, 16 Jur. 233. .
And the Court can ^^M^^^ ^yWcrdsi^^^^ *" ^ sole^rustees in the
4 R ^
612 STATUTORY JUEISDICTION.
place of the continuing and retiring trustees : Be Stoked Trusts, L. R. 13 Eq.
333.
The number of the trustees originally appointed may be increased : Be Tim-
stall, 4 De Gr. & Sm. 421 ; Be Boycott, 5 W. E. 15.
Where the number has been increased upon tlie petition of the reversioners,
the costs of the petition were ordered to be paid by the petitioners : Be Bracken-
bury, L. E. 10 Bq. 45.
The Court has no power under the Trustee Act to appoint trustees where
there are trustees de facto acting as such : Be Hadley, 5 De G. & Sm. 67 ; 16
Jur. 98.
Nor to appoint a new trustee where there is a legal power to appoint one
vested in a party who is willing to exercise it, and who is not incapacitated : Re
Hodgson, 15 Jur. 553.
But where there was power to appoint out of Court, upon the petition of all
parties, and to save expense, the Court has appointed a new trustee in the place
of a lunatic trustee and given a vesting order : Be Davies, 3 Mac. & G. 278 ;
Be Cooper, 4 W. E. 729 ; Be Ohauncey, 14 W. R. 849.
And where the donee of a power to appoint was a lunatic, and found so by
inquisition, the Court has jurisdiction to appoint a new trustee : Be Sparrow,
L. E, 8 Ch. 662.
And where one of three trustees became of unsound mind, but was not so
found by inquisition, and the other trustees appointed a new trustee, the power to
appoint was held well exercised, and vesting order made : Be Bellwood, L. E.
5 Ch. 735.
And service on the trustee of unsound mind was dispensed with : S. C .
In the case of a petition to appoint a new trustee in the place of a lunatic, the
order need not necessarily be made in Lunacy, but may be made in Chancery : Be
Sparrow, supra, L. E. 8 Ch. 662.
The Court has power to appoint a new trustee although the original trustee
took only an estate by implication : Be Boyce, 15 Jur. 138.
And may appoint trustees under the Act where there never have been trustees,
in consequence of their having pre-deceased the testator: Be Smirthwaite's Trusts,
L. R. 11 Eq. 251.
The Court has recognised a constructive trusteeship of stock and appointed
new trustees of it, although no trustees were originally appointed of the will : Be
Davis, L. E. 12 Bq. 214.
The Court has substituted a trustee for an infant trustee appointed by the
testator : Be Gartside, 1 W. E. 196 ; Be Porter, 2 Jur. (N.S.) 349. But in a
similar case the appointment was directed to be made without prejudice to any
application by the infant to he restored to the trusteeship on coming of age : Be
Slidmerdine, 33 L. J. ^,Ch.) 474, cited in Dan. 5th ed. 1821.
Where any person shall he jointly or solely seised or possessed of any lands, or
entitled to any stock upon any trust, and shall be convicted of felony, the Court,
upon proof of conviction, may appoint a person to be a trustee in the place of
such convict: 15 & 16 Vict. c. 55, s. 8.
The Court has power to appoint new trustees of a trust deed registered under
the Bankruptcy Act, 1861: Be Price, L. E. 6 Eq. 460; Be Baphael, L. E.
9 Bq. 233.
The 32nd section does not give the Court jurisdiction under the Act to displace
a trustee who is desirous of continuing in the trust : Be Blanchard, 3 De G.
F. & J. 131 ; Be Hodson, 0 Hare, 118 ; lie Doulcet, 30 L. J. (Ch.) 516.
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THE TRUSTEE ACTS, ISSQ and 1852. 613
But has jurisdiction to appoint a new trustee in place of one permanently
residing abroad without his consent : Re Bignold's Settlement, L. R. 7 Ch. 223.
The fact of a trustee having become bankrupt is not of itself a sufficient reason
for removing him from the trust : Se Bridgman, 1 Dr. & Sm. 164 ; 6 Jur.
(N.S.) 1065.
Where a bankrupt is a trustee within the Trustee Act, 1850, sect. 32 of that
Act shall have effect so as to authorize the Court to appoint a new trustee in sub-
stitution for the bankrupt (whether voluntarily resigning or not) if it appears
to the Court expedient so to do : 82 & 33 Vict. c. 71, s. 117 ; Coombes v. Brakes,
L. R. 12 Eq. 61.
The Court will not appoint a new trustee in the place of one r^ident temporarily
out of the jurisdiction : Re Mais, 16 Jur. eot^.
Where the trustee of a term of years died many years ago, and there were
difficulties in procuring a personal representative of the trustee, the Court has
appointed a new trustee of the term : Davis v. Chanter, 4 Jur. (N.S.) 272.
Where a suit had been instituted for the purpose of obtaining an order for
transfer of a fund standing in books of the Bank of England in the name of
an incorporate body which had ceased to exist, the Court appointed two trustees,
and empowered them to transfer the fund : King of Eanover v. Banh of Eng-
land, L. K. 8 Bq. 350 ; Order, p. 610.
The Court will not re-appoint a trustee under sect. 32, merely for the purpose
of making a vesting order under sect. 34 : Re Driver's Settlement, L. B. 19 Eq.
352. See also Re Dalgleish's Settlement, L. R. 1 Ch. D. .46.
Desckiption of Property vested.
Where a vesting order is obtained the property should be described, not parcel
by parcel, but generally : Re Ord, 3 W. E. 386.
Disclaiming Trustees.
A parol disclaimer in Court by a trustee has been held not to divest the free-
hold estates vested in him : Re EUison, 2 Jur. (N.S.) 62.
But subsequently a disclaimer by counsel at bar Las been held sufficient :
Foster v. Dawber, 1 Dr. & Sm. 172 ; and see Re Skinner, 2 W. R. 130 ; i:e
Badcock, 2 W. R. 386.
A disclaiming trustee only gets his costs as between party and party : Bulhely
V. Ea/rl ofMglinton, 1 Jur. (N.S.) 994.
Trustees, who appointed.
Under ordinary circumstances the Court will not appoint trustee one of the
cestuis que trust : Re Conybeave, 1 W. R. 458 ; Re Glutton, 17 Jur. 988. But,
will do so under special circumstances : S. C.
Except in cases of necessity the Court will not appoint a near relative of the
persons interested to be a trustee : Wilding v. Bolder, 21 Beav. 222 ; and see Be
Eattatt, 18 W. R. 416, cited in Dan. 5th ed. 1822.
The Court has declined to appoint a feme sole the trustee : Brook v. Brook,
1 Beav. 531. But in later cases, where the circumstances have been peculiar, a
feme sole has been appointed : Re Campbell, 31 Beav. 176 ; 8 Jur. (N.S.) 1199 ;
Be Berkeley, L. R. 9 Ch. 720.
The Court will not appoint resident foreigners out of the jurisdiction to be
trustees : i?e Gwifter^, 16 Jur..852.
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614 STATUTORY JUEISDICTION.
Where a married woman, who was the legal personal representative of a
testator, made her will in exercise of a power, and appointed her husband sole
executor, the husband was appointed a trustee of funds standing in testator's
name upon an undertaking to bring them into Court under the Trustee Eelief
Act : Be Herhert, 8 W. B. 272.
Costs — Section 51.
UstMl Order.
Let it be referred to the taxing master to tax the petitioners [and
Eespondents] their costs and expenses of and relating to this petition
[and of the conveyance, assignment, or transfer hereinbefore directed
to he made]. Let such costs and expenses when taxed be raised and
paid by the said [trustees] out of the trust estate in the petition men-
tioned [or, out of the income or rents and profits of the said trust
estate].
Costs to he raised by Mortgage.
Directions for taxation of costs of petition and of the mortgage
hereinafter directed to be maide. Let the said costs and expenses
when taxed, with interest thereon at the rate of £4 per cent, per
annum, be a charge upon the real estate devised by the testator's will
to the trustees thereof, and be raised by mortgage of a sufficient part
of such real estate. Let the said mortgage be settled by the judge,
and bo executed by all proper parties. Let the interest on such mort-
gage be paid by the trustees from time to time as it accrues due ; and
Let the money to be raised be applied by the trustees in payment of
the said costs and expenses. Be CrcAtree, 14 W. E. 497.
Costs.
The Lord Chancellor, " and the Court of Chancery, may order the costs and
expenses of and relating to the petitions, orders, directions, conveyances, assign-
ments, and transfers to be made in pursuance of this Act, or any of them, to
be paid and raised out of or from the lands or personal estate, or the rents and
produce thereof, in respect of which the same respectively shaE be made, or in
such manner as the said Lord Chancellor or Court shall think proper " : 13 & 14
Vict. c. 60, s. 51.
Where the petition for the appointment of new trustees also asked for an inquiry
at chambers, the costs of the application were ordered to be paid out of the fund,
excluding the costs prayed for, " incidental to or consequent on the inquiry " : Re
Fellows, 2 Jur. (N.S.) 62.
In most cases the costs of a petition for the appointment of new trustees will be
directed to be paid out of the corpus of the fund to which the trustee is ap-
pointed : Grant v. Grant, 34 L. J. (Ch.) 641 ; Carter v. Sebright, 7 W. B. 225.
But where a legacy had been bequeathed to a sole trustee upon trust for a tenant
for life, upon the petition of the reversioners for the appointment of an additional
trustee, the costs were ordered to be paid by the petitioners, and not out of the
corpus : Re Brackenhury, L. R. 10 Eq. 45.
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THE TRUSTEE ACTS, 1850 and 1825. 615
In a proper case the Court will direct the costs to be a charge upon the in-
heritance, and to be raised by mortgage with interest at £4 per cent. : lie Dames, .
16 Jur. 882 ; Be Grabtree, 14 W. R. 497 ; Order, supra.
Upon an agreement by a vendor to surrender copyholds to a purchaser, the costs
of the surrender to be borne by the purchaser, the necessity subsequently arising
to procure a suiTender under the Trustee Act, the costs of the petition were
ordered to be borne by the vendor : Bradley v. Munton, 16 Beav. 294 ; see also
Ayles V. Cox, 17 Beav. 584.
Railway companies are liable, under the Lands Clauses Act, to pay costs of
proceedings under the Trustee Act to perfect their title : -Be Liverpool Improve-
ment Act, L. R. 5 Bq. 282, overruling Be South Wales By. Co., 14 Beav. 418.
And where land had been taken by a railway company from the transferee of a
deceased mortgagee, whose heir could not be found, the company were held liable
to pay the costs of a petition by the vendor for the appointment of a person to
convey : Be Nash, 4 W. R. 111.
Upon a petition for the appointment of new trustees of two trust funds
subject to different limitations, the costs were ordered to be paid out of the two
funds rat€ably : Be Grant, 2 J. & H. 764.
The Court has no power to make a respondent, a stranger to the trust, pay the
costs of an application under the Act : Be Primrose, 23 Beav. 590 ; 3 Jur. (N.S.)
899 ; Be Wistman, 18 W. R. 574.
But a respondent has been ordered to pay the costs of irrelevant charges intro-
duced into his evidence : Be Wills, 9 Jur. (N.S.) 1225 ; 12 W. R. 97.
The costs of a petition imder the Act for obtaining from the committee of a
lunatic a reconveyance of premises mortgaged to the lunatic have been ordered to
be paid out of the lunatic's estate where the lunatic is beneficially interested in
the mortgage money, and the petition is presented by the committee : Be Wheeler,
1 Be G. M. & G. 434; Ex parte Bichards, 1 Jac. & W. 264; Re Bowley,
1 De G. J. & S. 417.
But upon a petition by a mortgagor for a vesting order or a reconveyance, re-
vesting in the petitioner the legal estate then outstanding in the mortgagee's heir,
who was a lunatic, the mortgage money having been paid off, the costs of the
petition were ordered to be borne by the mortgagor : Be Stuart, 4 De G. Se J.
317.
And where the petition was presented by the committee of a lunatic mortgagee
for a reconveyance of the mortgaged estate, the mortgagor is not entitled to his
costs out of the lunatic's estate, even though served with the petition : Be Phillips,
L. R. 4 Ch. 629.
Where the petition was presented by the pits in an administration suit, and the
purchasers under the decree in that suit, for the purpose of vesting in the pur-
chasers the legal estate which was outstanding in a lunatic mortgagee, a portion of
the costs were ordered to be paid out of the mortgage money, and the rest to be
costs in the cause : Dan. 6th ed. 1830, citing Be Viall, 8 De G. M. & G. 439.
Petitionees — Eespondents.
An order " for the appointment of a new trustee or trustees, or concerning any
lands, stock, or chose in action subject to a trust, may be made upon the ap-
plication of any person beneficially interested in such lands, stock, or chose in
action, whether under disability or not, or upon the application of any person
duly appointed as a trustee thereof; and an order concerning any lands, stock, or
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616 STATUTORY JURISDIOTION.
chose in action subject to a mortgage, may be made on tbe application of any
person beneficially interested in tbe equity of redemption, whether under
disability or not, or of any person interested in the moneys secured by such mort-
gage " : 13 & 14 Vict. c. 60, s. 37.
J2-2 As a general rule all persons beneficially interested in the property, or parties
to the suit where the application is made in a suit, must join in the application or be
served : Dan. 5th ed. 1823, citing Be Richards, 5 De Gr. & Sm. 636 ; Re Fellows,
f-^2 Jur. (N.S.) 62.
y / Where the cestuis que trust are numerous, some may petition for the class :
Jones V. James, 9 Hare, App. 80 ; Re Sharpley, 1 W. E. 271 ; Re Smyth, 2 De G.
& Sm. 781.
Retiring trustees must either appeal as petitioners or be served : Re Sloper, 18
Beav. 596.
Where leaseholds are vested by the order it is not necessary to serve the owner
of the freehold with the petition : Re Matthews, 2 W. R. 85.
Upon a petition to appoint trustees of a will, of which there never have been
trustees, and to vest freeholds, the heir-at-law of the testator must be served : Re
Smirthwaite's Trusts, L. E. 11 Eq. 251 ; Ounson v. Simpson, L. R. 5 Eq. 332.
And a petition for an order vesting in new trustees property of which a trustee
has become lunatic, ought to be served on the committee : Re Saumarez, 8 De G.
M. & G. 390.
It is not in general necessary to serve on the mortgagor a petition for vesting
an estate outstanding in a mortgagee or his heir: Dan. 5th ed. 1824, citing Re
Rowley, 1 De G. J. & S. 417 ; Re Phillips, L. R. 4 Ch. 629 ; see also Re Wise,
5 De G. & Sm. 415.
Nor to serve the infant heir of a former sole or surviving trustee upon a peti-
tion to appoint new trustees and for a vesting order : Re Little, L. R. 7 Eq. 323 ;
see also Re Tweedy, 9 W. R. 398 ; Jarvis v. Abraham, W. N. (1866), 126.
Nor to serve the infant heir of a deceased mortgagee upon a petition for the
appointment of a person to convey : Re Willan, 9 W. R. 689.
Evidence.
Wherever the order divests an estate vested in any person, the application must
be supported by strict evidence, and whenever it vests an estate in any person
absolutely, the title of such person must be proved by strict evidence : Dan.
5th ed. 1825.
In other cases an affidavit verifying the title of the beneficiaries is sufficient,
and certificates from parish registers, and affidavits of identity, are dispensed
with : Re Hoskins, 4 De G. & J. 436.
And the affidavit of the petitioner's solicitor will, if his means of Imowledge are
stated and considered sufficient by the Court, be accepted. Ibid.
But the Court will not take the affidavit of the solicitor as to the fitness of the
proposed trustee : Grundy v. Ruckeridge, 17 Jur. 731.
Deaths of trustees must be strictly proved.
The written consent of new trustees to act must be verified by affidavit.
The new trustee or trustees are not entitled to appear by counsel upon the
petition : Re Dresser, 2 W. R. 440; Re Battersby, 16 Jur. 900.
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CHAPf EE XXXIX.
THE SETTLED ESTATES ACTS.
19 & 20 Vict. c. 120 ; 21 & 22 Vict. c. 77 ; 27 & 28 Vicr. c. 45 ;
37 & 38 Vict. c. 33.
Guardian of Infant.
Let — be appointed the guardian of the infant A. for tlie purpose
of making [or, consenting to] on behalf of the said infant an applica-
tion to this Court under the provisions of the above-mentioned Acts
for liberty to [state general object of petition].
If petition^-lms been presented : Let — be appointed, &c., for the pur-
pose of consenting to on behalf of the said infant the application
proposed to be made to this Court under the provisions of the above-
mentioned Acts by the petition presented on the — day of — .
Consents — Guaedians, &c.
" Subject to the exception contained in the next section, every application to
the Court must be made with the concurrence or consent of the following parties ;
namely, —
Where there is a tenant in tail under the settlement in existence, and of full
age, then the parties to concur or consent shall he such tenant in tail, or if
there is more than one such tenant in tail, then the first of such tenants
in tail, and all persons in existence having any beneficial estate or interest
under or by virtue of the settlement prior to the estate of such tenant in
tail, and all tmstees having any estate or interest on behalf of any unborn
child prior to the estate of such tenant in tail ;
And in every other case the parties to concur or consent shall be all the
persons in existence having any beneficial estate or interest under or by
virtue of the settlement, and also all trustees having any estate or interest
on behalf of any unborn child ": 19 & 20 Vict. c. 120, s. 17.
The petition may be granted without consent, saving the rights of non-consent-
ing parties : sect. 18.
And by a recent Act, " Where under the principal Act the concurrence or
consent of any person in or to any application hereafter to be made under that
Act is required, and such concurrence or consent shall not have been obtained,
notice shall be given to such person, in such manner as the Court to which such
application shall be made shall direct requiring him to notify, within a time to
be specified in such notice, whether he assents to or dissents from such applica-
tion, or submits his rights and interests, so far as they may be affected by such
application, to be dealt with by the Court ; and every such notice shall specify to
whom and in what manner such notification is to be delivered or left " : Settled
Estates Amendment Act, 37 & 38 Vict. c. 83, s. 2.
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618 STATUTORY JURISDICTION.
" In case no notification shall be delivered or left in accordance with the
notice, and within the time thereby limited, the person to or for whom such
notice shall have been given or left shall be deemed to have submitted his rights
and interests to be dealt with by the Court " : 37 & 38 Vict. c. 33, s. 2.
" An order under the principal Act may be made upon any such application
notwithstanding that the concurrence or consent of any such person as aforesaid
shall not have been obtained, or shall have been refused, bu^ the Court in con-
sidering the application shall have regard to the number of persons who concur
in or consent to the application, and who dissent therefrom, or who submit or
are deemed to submit their rights or interests to be dealt with by the Court, and
to the estates or interests which such persons respectively have or claim to have
in the estate as to which such application is made, and every order of the Court
made upon such application shall have the same effect as if all such persons had
been consenting parties thereto ": 37 & 38 Vict. c. 33, s. 3. See Taylor v. Taylor,
L. R. 1 Ch. D. 426.
Under sect. 2 of the Amendment Act a, person of unsound mind not so found
by inquisition may be served with notice : Re Crahtree's Settled Estate, L. R.
10 Ch. 201.
All powers given by the Settled Estates Acts, and all applications to the Court
under the Acts, and consents to such applications, may be exercised, made, or
given by guardians on behalf of the infants, by committees on behalf of lunatics,
and by assignees of bankruptcy : 1 9 & 20 Vict. c. 120, s. 36.
The guardian may be appointed either before or after the petition has been
presented : Hargreav^s Settled Estates, 7 W. R. 156 ; Longstaffe's Settled Estates,
1 Dr. & Sm. 142. But see Judges' Regulations, August 8, 1857.
If the guardian is appointed before the presentation, the order should be entitled
in the same manner as the petition.
The guardian must be appointed, even although the father, having no adverse
interest, concurs : Oaddich's Settled Estates, 7 W. R. 334.
The consent of the testamentiiry guardian of an infant interested in remainder
is not sufficient : Be James, L. R. 5 Eq. 334.
In the cases of infant or lunatic tenants in tail, no application to the Court, or
consent to any application, may be made or given by any guardian or committee
without the special direction of the Court : 19 & 20 Vict. c. 120, s. 36.
The committee of a lunatic must obtain the permission of the Court of Lunacy
before he consents to the application to the Court of Chancery : Woodcock's
Trusts, L. R. 3 Ch. 229,
A guardian is not the proper person to give a consent on behalf of a person of
unsound mind not found so by inquisition, but a committee must be appointed :
lie Clough's Estate, L. R. 15 Eq. 284, overruling Be Venner, L. R. 6 Eq. 249.
Examination of Married "Women.
' Let — of, &c. [a solicitor of this Court] he appointed to examine A.,
the wife of.B., apart from her hushand, touching her knowledge of the
nature and effect of the application intended to be made to the Court
by the petition presented in these matters on the — day of — , and to
ascertain whether she freely desires to make [or, consent to] such
application.
" Where a married woman shall apply to the Court, or consent to an appli-
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THE SETTLED ESTATES ACTS. 619
cation to the Court, under the Act, she shall first be examined apart from her
husband": 19 & 20 Vict. c. 120, s. 37.
The examination must be made whether the property the subject of the appli-
cation is in trust for the separate use of the married woman or not : Ibid.
The examination of a married woman, whether petitioner or respondent, should
not be taken until after the petition is presented ; Dan. 5th ed. 1854.
And it may be taken at any time up to the hearing of the petition, or may be
taken in Court on the hearing of the petition : Forster's Settled Estates, 24 Beav.
220 ; 1 De G. & J. 386 ; Be Taylor's Estates, L. E. 14 Eq. 557 ; Be Packer,
39 L. J. (Ch.) 220.
Where a woman married after the petition was presented, but before any pro-
ceedings were taken upon it, the Court required her examination: Cunder's
Estates, cited, in Morgan, 253.
A married woman entitled to a jointure charged upon the settled estate must
be examined: Be Turhot, 8 L. T. (N.S.) 687.
The examination of the married woman must be made either by the Court, or
by some solicitor duly appointed by the Court for that purpose : 19 & 20 Vict.
0. 120, s. 38.
Where the married woman is resident oiit of the jurisdiction, her examination
may be made by any person appointed for that purpose by the Court, whether he
is or is not a solicitor of the Court : 21 & 22 Vict. c. 77, s. 6.
The solicitor appointed under the 38th section of the 19 & 20 Vict. c. 120,
must not be the solicitor acting in the matter, nor the solicitor of the husband :
Brealey's Settled Estates, 5 W. R. 613 ; Noyes' Settled Estates, 6 W. E. 7.
Where the married woman's interest was remote, her examination was dis-
pensed with : De Tahley's Settled Estates, 11 W. E. 936. So, too, where the
married woman was resident in New Zealand : Be Ealliday, L. E. 12 Eq. 199.
A married woman who is under age is in the same position as if she were of
full age, and she must in ordinary cases be examined. Her concurrence by a
guardian is not sufficient : Be Broadwood, L. E. 7 Ch. 323.
Where a spinster, a petitioner, married after the publication of the advertise-
ments, but before the hearing of the petition, her examination was dispensed
with : Be Marshdl, L. E. 15 Eq. 66.
Advertisements of Petition.
" Notice of any application to the Court imder this Act shall be inserted in
such newspapers as the Court shall direct ": 19 & 20 Vict. c. 120, s. 20.
" All petitions and notices, and also all affidavits and other proceedings under
this Act, shall be intituled in the matter of the Act, and in the matter of the pro-
perty in question, mentioning the county and parish or place in which it is
situate, and describing it by general terms " : Cons. Ord. 41, rule 15.
The direction usually given as to the notices is to insert them once in each of
three successive weeks in two newspapers circulating in the neighbourhood of the
property in question : Dan. 5th ed. 1844.
.The weeks need not be successive : Browne v. Pertnefather, 4 N. R. 221.
The advertisements should correspond with the title of the petition, and should
be framed in strict compliance with the Cons. Ord. 41, rule 15.
Where the names and addresses of certain of the petitioners were omitted from
the advertisement, the Court has dispensed with fresh advertisements being
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620 STATUTORY JURISDICTION.
issued : Re Bwley's Estate, W. N. (1868) 148 ; Be Whiteley, L. R. 8 Eq. 574 ;
see also Re Eemsley, L. E. 16 Eq. 315.
Where one of the petitioners married after the publication of the advertise-
ments, fresh advertisements and the examination of the married woman were
dispensed witli : Re Marshall, L. R. 15 Eq. 66.
Where amendments are made in a petition after presentation, and the amend-
meuts do not involve new facts or parties, fresh advertisements have heen dis-
pensed with : Re Bunlury, 11 Jur. (N.S.) 27 ; 13 W. R. 370.
And where the petitioner (the tenant for life) died after the presentation and
service of the petition, and considerable expense had been incurred in the adver-
tisements and service, leave was given to amend the petition by substituting the
first tenant: in tail as petitioner (without fresh service of the amended petition) :
Re Wilkinson, L. E. 9 Eq. 71.
In the heading of advertisements the Act is sufficiently described as " The
Leases and Sales of Settled Estates Act "-..Re Bicknell, L. R. 14 Eq. 467.
Setting down Petition.
" No petition under the Act shall be set down for hearing until after the
expiration of twenty-one days from the publication of the last of the advertise-
ments " : Cons. Ord. 41, rule 20.
But petitions have been allowed to be heard before the expiration of the twenty-
one days, in order to avoid the delay of the Long Vacation : Re Adam, 6 L. T.
(N.S.) 604 ; Re Taylor's Settled Estates, L. R. 14 Eq. 557. Contra, Re Towns-
ends Settled Estates, L. R. 14 Eq. 433.
Evidence.
" The Court shall not be at liberty to grant any application under this Act in
any case where the applicant, or any party entitled, has previously applied to
either House of Parliament for a private Act to effect the same or a similar object,
and such application has been rejected on its merits, or reported against " : 19 &
20 Vict. 0. 120, =. 21.
" Upon every application under the Act the Court must be satisfied by sufB-
cient evidence that no such previous application as is mentioned in the 21st
section of the Act has been made and rejected, or reported against " : Cons.
Ord. 4, rule 21.
" On every application under the Act for authority to sell, the Court must be
satisfied by sufficient evidence who are the parties interested in the estate whose
consent is required by the Act, and what are the circumstances which render the
proposed sale proper and expedient " : Cons. Ord. 41, rule 22.
" Where application is made to the Court, either to approve of a particular
lease, or to vest any power of leasing in trustees, the Court shall require the ap-
plicant to produce such evidence as he shall deem sufficient to enable it to ascer-
tain the nature, value, and circumstances of the estate, and the terms and
conditions on which leases thereof ought to be authorized " : 19 & 20 Vict. c. 120,
s. 21.
Sale.
Common Orders — Sect. 11.
The Court being of opinion that it is proper, and consistent with a
due regard for the interests of all parties entitled under the will of
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THE SETTLED ESTATES ACTS. 62l
&o. [or, the indenture of settlement dated, &o.], that a sale should be
authorized of [the lands and premises situate at — being part of] the
settled estates devised by the said will [or, subject to the trusts of the
said indenture of settlement; or, of the timber mentioned and de-
scribed in the valuation marked X, referred to in the af&davit of B.,
and growing on, &c.J, [If incumbrances suggested : Let an inquiry be
made, &c.J, Let the said lands and premises [or, the said estate, or,
timber] be sold accordingly, with the approbation of the judge. If
subject to incumbrances : free from the incumbrances (if any) of such
of the incumbrancers as shall consent to such sale, and subject to the
incumbrances of such of them as shall not consent.
Payment into Court : Let the money to arise by such sale be paid
into Court to the credit of Ex parte [names of petitioners']. In the
matter of " The Leases and Sales of Settled Estates Acts :" The pro-
ceeds of the sale of the settled estates of, &c.
Payment to trustees and investment : Let the money to arise by such
sale be paid to — , the trustees of the said will [or, indenture of settle^
ment], and Let the said trustees apply the same to one or more of the
purposes mentioned in the 23rd section of the said Act without any
application to the Court.
Interim investment : Let, until the money can be so applied, the said
trustees from time to time invest the same, or the unapplied portion
thereof for the time being, in the purchase of Consolidated £3 per Cent,
Annuities [or. Exchequer bills] in the names of the said trustees, and re-
ceive the interest thereof, and pay the same to, &c. [or, apply the same
upon the same trusts and subject to the same powers and provisions in
all respects as are contained in the said will or settlement concerning
the rents and profits of the property hereby directed to be sold]. Let —
execute the deed or deeds of conveyance of the said property to the
purchaser or purchasers thereof. Let the costs of all parties of and
incident to this application be taxed by the taxing master ; and Let
the said trustees be at liberty, out of the money to arise by such sale,
to pay and retain the said costs when taxed. If costs to he paid under
sect. 29 : Let the said costs and expenses when taxed be a charge upon
the said hereditaments [or, on the lands situate at — , being heredita-
ments included in the said settlement, and subject to the same limita-
tions]. If ordered : And Let the same be raised by sale or mortgage
of a sufficient part of the said hereditaments with the approbation of
the judge.
If registration required : Let a duplicate or memorial of this order
be registered in the registiy of deeds for the county of — .
Let notice of this order be indorsed upon the probate of the will of
the testator [or, upon the said indenture of settlement, &c.].
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622 STATUTORY JURISDICTION.
If Sale Moneys to he paid to new Trustees — Sect. 23.
LiT A. and B. be appointed trustees for the purpose of receiving the
money to arise by the sale hereby directed. Let any of the persons
interested in the money to arise by the said sale, or the trustees or
trustee for the time being, be at liberty to apply at chambers for the
appointment of a new trustee or new trustees as there shall be occasion.
Sale of whole Property — Part in Settlement.
The Court being of opinion, &e., that a sale should be authorized of
the individual moiety of the lands and hereditaments situate at — , being
the settled moiety devised by the will of the testator J. E. (of the whole
of which lands the testators J. E. & W. M. were seised in undivided
moieties), and the petitioner A. B., who is seised in fee of the re-
maining moiety of the said lands and hereditaments, by his counsel
desiring that the same should be sold with the said moiety in settle-
ment. Let the whole of the said lands situate, &c., be sold with
the approbation of the judge.
Let the money to arise by the said sale be paid into Court to the
credit of Ex parte, &c., In the matter, &c. Let the petitioner A. B.
execute the deed or deeds of conveyance of the said lands and heredi-
taments to the purchaser or respective purchasers thereof on such
sale being effected. Let the costs and expenses of the petitioners of
and incidental to this application be taxed by the taxing master as
between solicitor and client. Let the petitioners be at liberty to
apply at chambers for payment of such costs out of the purchase-money
and for distribution of the residue of the said purchase-money as they
may be advised. Let notice of this order be indorsed upon the pro-
bates of the wills of the testators John Marshall and William Marshall.
Be Marshall (V.-C. M.), Nov. 6, 1868.
Sale — Special Agreement.
The Court deeming it proper and consistent, &c., that a sale should
be authorized of the freehold houses and premises situate, &c., in the
petition mentioned, and being [part of] the settled estate devised by the
will of the testator, and that the agreement for sale dated, &c., in the
petition mentioned is a proper agreement for that purpose, Let the said
agreement dated, &c., for the sale of the said house and premises to —
be carried into effect accordingly. Let A. and B., the present trustees
of the testator's will, execute the deed or deeds of conveyance of the
said premises to the purchaser thereof, such conveyance to be settled
by the judge. Let the moneys to arise by such sale be paid to the
said trustees, with liberty for them to apply the same for any of the
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THE SETTLED ESTATES ACTS. 623
purposes mentioned in the 23rd sectioil of the above-mentioned Act
■without any application to the Court. Let, tmtil the money can be so
applied, the trustees be at liberty to invest the same in Bank 3 per
Cent. Annuities or Exchequer bills, or on meh other securities as money
under the control of the Court may he invested, and pay the income of such
investments to the person who would be entitled to the rents and
profits of the said premises. Let the costs and expenses of the peti-
tioners and respondents of and incident to this application be taxed,
&c., and paid by the trustees out of the money to arise by such sale.
Let notice of this order be indorsed upon the probate of the will of
the testator.
Sale of Mines aj)art from Surface.
The Court being of opinion that it is proper, and consistent, &c.,
that a sale should be authorized of the beds of coal under the closes
of land at Codnor in the petition mentioned, and of the ironstone and
other minerals under the said closes of land, and that the contract for
sale of the said beds of coal to the Butterley Company in the petition
mentioned is a fit and proper contract for such sale. Doth order that
the said contract be carried into effect. Let the petitioners Howitt
and Baines, or other the trustees for the time being of the testator's
will, be at liberty to execute a proper conveyance of the said coal (such
conveyance to be settled by the judge), and to sell the ironstone and
other minerals under the said closes of land at Uodnor aforesaid, subject
to the provisions and restrictions in the said Act contained. Let the
petitioners, the trustees, be at liberty to receive the money payable
under such contract, and the money to arise from the sale of the
ironstone and other minerals, and apply the same respectively to some
one or more of the purposes mentioned in the 23rd section of the said
Act without any application to this Court. Let notice of this order
be indorsed upon the probate of the said will. Be MUward, L. E.
6 Eq. 248.
Sale.
" It shall be lawful for the Court of Chancery in England, so far as relates to
estates in England, and for the Court of Chancery in Ireland, so far as relates to
estates in Ireland, if It shall deem it proper and consistent with a due regard for
the interests of all parties entitled under the settlement, and subject to the pro-
visions and restrictions in this Act contained, from time to time to authorize a
sale of the whole or any parts of any settled estates or of any timber not being
[ornamental timber] growing on any settled estates ; and every such sale shall be
conducted and confirmed in the same manner as by the rules and practice of the
Court for the time being is or shall be required in the sale of lands sold under a
decree of the Court :" 19 & 20 Vict. c. 120, s. 11.
The Court will not sanction sales indefinitely, but only those mentioafid in the
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624 STATUTORY JURISDICTION.
petition, and any others which the Court shall be satisfied with as being beneficial :
Peacock's Settled Estates, 15 W. B. 100.
On any sale of land any earth, coal, stone, or mineral may be excepted, and any
rights or privileges may be reserved : 19 & 20 Vict. c. 120, s. 13.
The words " settlement " and " settled estates " used in the Settled Estates Act
include estates in remainder or reversion not disposed of by the settlement, and
reverting to a settlor or a testator's heir : 21 & 22 Vict. c. 77, s. 1.
And the Court in determining what are settled estates will be governed by the
state of facts, and by the trusts and limitations at the time of the settlement
taking eff'ect : 27 & 28 Vict. o. 45, s. 3.
On every sale the Court may direct what person or persons shall execute the
deed of conveyance : 19 & 20 Vict. c. 120, s. 15.
When any land is sold for building purposes, the Court may allow the whole or
any part of the consideration to be a rent issuing out of such land, which may be
secured and settled as the Court shall approve : 19 & 20 Vict. c. 120, s. 12.
Where the property purposed to be sold comprises copyholds as well as free-
holds, the Court may order the copyholds to be enfranchised before the sale, and
the costs of enfranchisement paid out of the proceeds of sale : Re Adair's Settled
Estates, L. E. 16 Bq. 124.
The Settled Estates Acts authorize a sale of mines apart from the surface: Be
Mallm, 3 Gifi^. 126 ; Re Law, 7 Jur. (N.S.) 511 ; Be Milward's Estate, h. R. 6
Bq. 248 ; Order, p. 623 ; and see Confirmation of Sales Act, 25 & 26 Vict. c. 108.
Application of Sale-moneys and Eents.
" All money to be received on any sale effected under the authority of this Act,
or to be set aside out of the rent or payments received on any lease of earth, coal,
stone, or minerals as aforesaid, may, if the Court shall think fit, be paid to any
trustees of whom it shall approve, or otherwise the same shall be paid into the
Bank of England or Ireland, as the case may be, to the account of the
Accountant-General of the Court of Chancery, ex parte the applicants in the
matter of this Act, and in either case such money shall be applied, as the Court
shall from time to time direct, to some one or more of the following purposes ;
(namely,) —
The purchase or redemption of the land tax, or the discharge or redemption
of any incumbrance affecting the hereditaments in respect of which such
money was paid, or affecting any other hereditaments subject to the same
uses or trusts ; or,
The purchase of other hereditaments to be settled in the same manner as the
hereditaments in respect of which the money was paid ; or
The payment to any person becoming absolutely entitled": 19 & 20 Vict,
c. 120, s. 23.
Under this section money arising from timber cut under an order of the Court
has been ordered to be expended in new farm buildings and permanent repairs
upon evidence that the value of the property would thereby be materially in-
creased : Be Newman's Settled Estate, L. E. 9 Ch. 681.
" The application of the money in manner aforesaid may, if the Court shall so
direct, be made by the trustees (if any) without any application to the Court or
otherwise, upon an order of the Court upon the petition of the person who would
be entitled to the possession or the receipt of the rents and profits of the land if
tliii money had been invested in the purchase of lund " : 19 & 20 Vict. c. 120,
s. 24.
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THE SETTLED ESTATES ACTS. ' 625
Interem Investment.
" Until the money can be applied as aforesaid the same shall be from time to
time invested in Exchequer Bills, or in £3 per Cent. Consolidated Bank Annuities,
as the Court shall think fit ; and the interest and dividends of such Exchequer
Bills or Bank Annuities shall be paid to the person who would have bepn entitled
to the rents and profits of the land if the money had been invested in the purchase
of the land" : 19 & 20 Vict. c. 120, s. 25.
Under this section it has been held that the money can be invested in any
investments in which cash under the control of the Court is allowed to be invested
under the General Order of Feb. 1, 1861, rule 1 : Re Gook, L. R. 12 Eq. 12 ; Re
Thfyrold, L. E. 14 Eq. 31 ; Re Toddy, L. E. 16 Bq. 582 ; Re Fryer's Settlement,
L. E. 20 Eq. 468 ; contra. Re Shaw, L. E. 14 Eq. 9.
Leases.
Agreement for Lease — Sect. 2.
This Court being of opinion, &c, that a lease of the lands situate at
— [or, of the house and premises situate at — ] being part of the
settled estate comprised in the said will [or, settlement] should be
authorized, and that the agreement for a lease of the said premises to
— in the petition mentioned should be carried into effect, Let the said
agreement be carried into effect accordingly. Let — execute the
same as lessor. Let the costs and expenses of the petitioners and
respondents be taxed and paid, &c. Let notice of this order, &c.
Leases — Power of the Court.
The Court may " authorize leases of any settled estates, or of any rights or
privileges over or affecting any settled estates, for any purpose whatsoever, whether
involving waste or not, provided the following conditions be observed :
First. Every such lease shall be made to take effect in possession at or
within one year next after the making thereofi and shall be for a term of
years not exceeding for an agricultural or occupation lease twenty-one
years; for a mining lease, or a lease of water, water-mills, way-leaves,
water-leaves, or other rights or easements, forty years ; and lor a building
lease, ninety-nine years ; or where the Court shall be satisfied that it is
the usual custom of the district and beneficial to the inheritance to grant
building leases for longer terms, then for such term as the Court shall
direct :
Secondly. On every such lease shall be reserved the best rent, or reservation
in the nature of rent, either uniform or not, that can be reasonably ob-
tained, to be made payable half-yearly or oftener, without taking any fine
or other benefit in the nature of a fine :
Thirdly. Where the lease is of any earth, coal, stone, or mineral, a certain
portion of the whole rent or payment reserved shall be from time to time
set aside and invested as hereinafter mentioned ; namely, when and so long
as the person for the time being entitled to the receipt of such rent is a
person who by reason of his estate, or by virtue of any declaration in the
settlement, is entitled to work such earth, coal, stone, or mineral, for his
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626 STATUTOBY JUEISDICTION.
own benefit, one»fourth part of such rent, and otherwise three-fourth parts
thereof; and in every such lease sufficient provision shall be made to ensure
such application of the aforesaid portion of the rent, by the appointment
of trustees or otherwise, as the Court shall deem expedient :
Fowrthly. No such lease shall authorize the felling of any trees, except so far
as shall be necessary for the purpose of clearing the ground for any build-
ings, excavations, or other works authorized by the lease :
Fifthly. Every such lease shall be by deed, and the lessee shall execute a
counterpart thereof; and every such lease shall contain a condition for re-
entry on non-payment of the rent for a period not less than twenty-eight
days after it becomes due": 19 & 20 Vict. c. 120, s. 2.
. The power given by the 2nd sectipn, quoted supra, " to extend the term
thereby prescribed for building leases, where it shall be satisfied that it is the
usual custom of the district and beneficial to the inheritance to grant building
leases for longer terms shall be extended, and may be exercised with respect to
all the other leases in the same section mentioned except agricultural leases, pro-
vided the Court shall be satisfied that it is the usual custom of the district and
beneficial to the inheritance to grant such leases for longer terms ": 21 & 22 Vict.
c. 77, s. 4.
Leases — Covenants.
Subject and in addition to the conditions mentioned in section 2 every lease
" shall contain such covenants, conditions, and stipulations as the Court shall
deem expedient with reference to the special circumstances of the demise ": 19 &
20 Vict. c. 120, s. 3.
Leases— Surrender of.
Any leases may be surrendered either for the purpose of obtaining a renewal of
the same or not, and the power to authorize leases extends to authorize new leases
of the whole or any part of the hereditaments comprised in any surrendered lease :
19 & 20 Vict. 0. 120, s. 5 ; 21 & 22 Vict. c. 77, s. 5 ; see Re Sawling's Estate,
L. B. 1 Eq. 286.
Leases — Preliminary Contracts foe.
" The power to authorize leases conferred by this Act shall extend to authorize
preliminary contracts to grant any such leases ; and any of the terms of such
contracts may be varied in the leases ": 19 & 20 Vict. c. 120, s. 6.
Leases— Mode of granting.
" The power to authorize leases conferred by this Act may be exercised by the
Court, either by approving of particular leases, or by ordering that powers of
leasing, in conformity with the provisions of this Act, shall be vested in trustees
in manner hereinafter mentioned " : 19 & 20 Vict. c. 120, s. 7.
Leases — Evidence.
" When application is made to the Court, either to approve of a particular
lease, or to vest any power of leasing in trustees, the Court shall require the
applicant to produce such evidence as it shall deem sufficient to enable it to
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THE SETTLED ESTATES ACTS. 627
ascertain the nature, value, and circumstances of the estate, and the terms and
conditions on which leases thereof ought to be authorized " : 19 & 20 Vict. c. 120,
S.8.
LsA3«;s — Execution by Lessor.
" When a particular lease or contract for a lease has been approved by the
Court, the Court shall direct what person or persons shall execute the same as
lessor ; and the lease or contract executed by such person or persons shall take
effect," &c. : 19 & 20 Vict. c. 120, s. 9.
Leases— Powers of Leasing — New Trustees.
" Where the Court shall deem it expedient that any general powers of leasing
any settled estates conformably to this Act should he vested in trustees, it may
by order vest any such power accordingly, either in the existing trustees of the
settlement or in any other persons ; and such powers when exercised by such
trustees shall take effect in all respects as if the power so vested in them had
been originally contained in the settlement, and so as to operate (if necessary)
by way of revocation," &c. : 19 & 20 Vict. c. 120, s. 10.
" And in every such case the Court, if it shall think fit, may impose any
conditions as to consents or otherwise on the exercise of such power, and the
Court may also authorize the insertion of provisions for the appointment of new
trustees from time to time for the purpose of exercising such powers of leasing aS
aforesaid " : Ibid.
No condition is to be inserted requiring that the leases should be submitted to
or be settled by the said Court or a judge thereof, or be made conformable with a
model lease deposited in judges' chambers, save only in any case in which the
parties applying for the order may desire to have any such condition inserted,
or in which it shall appear to the Court that there is some special reason ren-
dering the insertion of such a condition necessary or expedient : 27 & 28 Vict.
c. 45, s. 1.
Building Leases.
This Court being of opinion that it is proper and consistent, &c., that
huUding leases of lands situate, &c., heing part of the settled
estate devised by [or, subject to. the trusts of] the will of the testator
A. [or, comprised in the indenture of settlement dated, &c.] should be
authorized subject as hereinafter mentioned, and that it is expedient
that general powers of granting building leases of the said lands
should be vested in the trustees of the said will [or, settlement] for the
time being. Let general powers of granting building leases [If a
longer term than ninety-nine yeajrs is sanctioned by the Court, add : for the
term or terms of — years] of the said lands, in conformity with the
said Act, and subject to the provisions and restrictions therein con-
tained, vest in A. and B., the trustees of the said will [or, of the said
settlement], and the survivors of them, or other the trustees or trustee
for the time being of the said will [or, settlement], such powers to be
exercised with the consent of the tenant for life (if any) for the time
being in possession of the said lands, who has attained the age of
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028 STATUTOKY JURISDICTION.
twenty-one years, or if there be no such tenant for life then withoiit such
consent. [If specially ordered by ihe Court or desired hy the petitioners,
add : And the leases to be granted in pursuance of this order are to
be upon such terms, and subject and in addition to the conditions
required by the said Act are to contain such covenants, conditions,
and stipulations as the judge shall approve.] And Let the costs and
expenses of the petitioners and of — [parties appearing] of and
incident to this petition be taxed by the taxing master, and be a
charge upon the said lands, or upon the lands situate at — , being
hereditaments included in the said settlement, and subject to the same
limitations. [If ordered: and be'raised by sale or mortgage of a
sufiScient part of the said lands] [or, be raised and paid out of the rents
and profits of the said lands.] And Let notice of this order be indorsed
upon the probate of the will of the testator A. [or, upon the indenture
of settlement dated, &c.J
If Power to vest in New Trustees — Sects. 10, 23.
This Court being of opinion, &c., and that it is expedient, &c.. Let
A. and B. be appointed trustees for the purpose of exercising such
powers of leasing. And any of the persons interested in the said
hereditaments, or the trustees or trustee for the time being, are to be
at liberty to apply in chambers for the appointment of a new trustee
or trustees as there shall be occasion.
Building Leases.
Building leases granted under tlie Act must be made to take effect in possession
within one year after the making thereof, and will be for a term of ninety-nine
years, except where it is the custom of the district and beneficial to the inheritance
to grant longer terms : 19 & 20 Vict. c. 120, s. 2 ; ante, p. 625.
The term " building lease " includes a repairing lease. But no repairing lease
is to be made for a term exceeding sixty years : 21 & 22 Viet. c. 77, s. 2.
Before the Court authorizes the granting of building leases for 999 years it will
require evidence not only as to the custom of the country, but that the land
cannot be let beneficially upon other terms : Carres Settled Estates, 9 W. R. 776 ;
21 & 22 Vict. c. 77, m. 4.
A building lease may be gi-anted to a lessee in consideration of his undertaking
to make the roads : Be Chambers, 28 Beav. 655.
Steeets, Roads, Gardens, &c.
Section 14.
[Vest general powers of granting building leases.] And His
Honour being also of opinion that it is proper, and consistent with a
due regard to the interests of all parties interested in the said settled
estates, that parts thereof should be laid out for streets, roads, squares.
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THE SETTLED ESTATES ACTS. 629
and gardens, It is ordered that such parts of the said settled estates as
the said trustees, with such consent as aforesaid shall lay out in
streets, roads, squares, and gardens do vest in the trustees or trustee
for the time being of the will of the testator. Let notice of this order
be indorsed, &c. Be Margreaves' Settled Estates, 15 W. E. 54.
Dedication for Boads, Gardens, &c. — Beference to Chambers.
This Court being of opinion that it is proper and consistent, &c.,
that subject to the provisions and restrictions in the said Act contained,
parts of the settled estate comprised in, &c., should be laid out for
streets (roads, paths, squares, gardens, or other open spaces, sewers,
drains, or watercourses). Let such parts of the said estate as the
judge shall approve be from time to time laid out, with the approbation
of the judge, for streets, &c., either to be dedicated to the public or not.
\_If so : and Let the parts so to be laid out remain and be vested in the
trustees or trustee of the said will or indenture of settlement for the
"time being, upon such trusts for securing the continued appropriation
thereof to the purposes aforesaid, in all respects as the judge shall
approve.] And Let a proper declaration of trust be settled by the
judge ; [or, if so : Let the said — or proper persons be appointed
trustees of the parts of the said estate so to be laid out. j And Let the
said [trustees of the will or settlement] convey such parts of the said
estate, so as to vest the same in the said [trustees to be appointed],
upon such trusts for securing the continued appropriation thereof for
the purposes aforesaid, in aU. respects as the judge shall direct. [If so :
And with such provisions for the appointment of new trustees when
required, either by application to a judge at chambers or otherwise, as
the judge shall direct, or. And Let any person interested in the said
hereditaments, or the trustees or trustee for the time being, be
at liberty to apply in chambers for the appointment of a new trustee or
new trustees as there shall be occasion. And let the conveyance be
settled by the judge. If so : and be executed, &c.] : Seton, 533.
Dedication for Boads, Gardens, and Sewers, &c. — Plajn adopted.
The Court being of opinion that subject to the provisions and re-
strictions in the said Acts contained the parts of the said settled
estates coloured pint in the map or plan referred to in the affidavit of
the petitioner W. E. filed the 25th April, 1871, should be laid out
for streets, roads, paths, squares, gardens, and other open places, and
for sewers, drains, and watercourses, as delineated on the said map or
plan, doth order that the same be laid out accordingly. And Let
such parts of the said estate vest in the said trustees, or other the
trustees for the time being of the settlement dated 29th November^
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630 STATUTORY JURISDICTION.
1874. Let the said trustees and auy of the parties interested be at
liberty to apply in chambers as to laying out any further parts of the
said estate in additional streets, roads, parks, squares, gardens, and
other open places, or for sewers, drains, or watercourses, and also as to
granting for building upon in perpetuity any part or parts of the said
estate, as Itiey may be advised. Be Bolleston (V.-C. W.), April 28,
1871.
Stkeets, Eoads Gardens, &c.
The Court may direct that any part of any settled estates be laid out for streets,
roads, paths, squares, gardens, or other open spaces, sewers, drains, or water-
courses, either to be dedicated to the public or not : 19 & 20 Vict. c. 120, s. 14.
And may direct that such parts remain vested in the trustees of the settlement,
or be conveyed to and vested in any other trustees : j O'd.
But the Court will not, under ihis section, sanction ihe sale of part of an estate
in order that the proceeds may be expended in making roads with a view to
building leases : Be Cficmlers, 28 Beav. 653 ; Be Eurle, 2 H. & M. 196.
It must be shewn that the roads are required for the immediate benefit of the
property in its existing state, or at any rate, for the purpose of aouses to be
built on leases to be granted immediately: Burle's Settled Estates, supra.
Upon every dedication the Court may direct what person or persons shall
execute the conveyance : 19 & 20 Vict. c. 120, s. 15;
MfNiNG Leases.
The Court being of opinion, &c.. Let leases of the &c. [state the earth,,
coal, stone, or mineral to he demised], lying within, undei, or upon the
lands situate at — , being [part of] the settled estate devised by the will
of the testator — [or, comprised in. the indenture of settlemen t dated,
&C.J should be auihorized subject as hereinafter oaentinned, and that it
is expedieiil that general powers to grant such leases should ^est in the
trustees of the said will [or, settlement] for the time being. Let general
powers to grant such leases in conformity with the said Act, and sub-
ject to the provisions and restrictions in the said Acts contained, vest
in the said A. and B. and the survlvoi of ihem, or other the trustees or
trustee for the time being of the said wUl [or, settlement], such powers
to be exercised with the consent of the tenan fc for ] ife. It any. for the
time being in possession of the said lands who has attained the age of
twenty-one years, or if there shall be no such tenant for life then
without such consent. [If specially ordered hy the Court or desired hy
the petitioners, add : And the leases to be granted in pursuance of this
order are to be upon such terms, and subject and "n addition io the
conditions required by the said Acts are to contain such certain cover
nants, conditions, and stipulations as the judge shall approve.] Let
all the money to be set aside out of the rents or payments to be re-
served on any such leases, as directed by the said Act, be paid to the
trustees [or, trustee] for the time being of the said will [or, jettle-
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THE SETTLED ESTATES AQTS. 631
meat]. Let, until such money can be applied to one or more of pur-
poses mentioned in the said Act, the said money be from time to time
invested in Bank ^S per Cent. Annuities [Eeduced Annuities, or, Ex-
chequer bills] in their [or, his] names [or, name] [or. If money set aside
out of rents to he paid into Court : Let all sums of mouey to be set aside,
&c., be from time to time within, &c., paid by the lessee or respective
lessees into Court to the credit of Ex parte [name of petitioners]. In the
matter, &c., to an account to be intituled " Money set aside out of the
rents reserved on the leases of the settled estates of — ."] And Let until
the same can be applied to some one or more of the purposes men-
tioned in the said' Acts the said sums when so paid into Court be laiid
out in Bank £3 per Cent. Anntiities [Eeduced Annuities, or, Exchequer
Bills] to the like credit. And Let the interest during the life of the
said A. [the person entitled to the rents and profits] from time to time
to accrue on the said Bank Annuities be paid to the said A. [or his
legal personal representative]. Let the interest upon the said annui-
ties [or. Exchequer bills] be paid by the said trustees or trustee to the
person who would have been entitled to the rents and profits of the
said land if the money had been invested in the purchase of land.
Let the costs and expenses of the petitioners and of [the other parties
appearing] of and incident to this application be taxed by the
taxing master. [If ordered : And Let the amount of the said costs
when taxed be a charge upon the said hereditaments, or upon the
lands situate at — , being hereditaments included in the said settle-
ment and subject to the same limitations. If ordered : And be raised
by sale or mortgage of a suflScient part of the said hereditaments, or,
be paid out of the rents and profits of the said hereditaments.] Let
notice of this order be indorsed, &c.
If New Trustees to be anointed — Sect. 23.
This Court being of opinion, &c., and that it is expedient, &c.. Let
A. and B. be appointed trustees for the purpose of receiving the money
to be set aside out of the rents or payments to be received on the
leases to be granted as aforesaid. Let any of the persons interested
in the said hereditaments, or the trustees or trustee for the time being,
be at liberty to apply in chambers for the appointment of a new
trustee or new trustees as there shall be occasion.
Mining Leases.
Mining leases granted under the Act must take effect in possession within one
year after the making thereof, and will be for a time not exceeding forty years :
19 & 20 Vict. c. 120, s. 2 ; ante, p. 625.
Where the lease is of any earth, coal, stone, or mineral, a certain portion of
the whole rent or payment reserved must be from time to time set aside and
invested : Ibid.
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632 STATUTOBY JURISDICTION. .
And when the person for the time being entitled to the receipt of such rent is a
person who is entitled to work such earth, coal, stone, or mineral for his own
benefit, one-fourth of the rent is to be reserved, and otherwise three-fourths
thereof: 19 & 20 Vict. c. 120, s. 2.
Indorsement on Settlement,
" The Court shall direct that some sufficient notice of any exercise of any of
the powers conferred on it by the Act shall be placed on the settlement, or on
any copies thereof, or otherwise recorded in any way it may think proper, in all
cases where it shall appear to the Court to be practicable and expedient for pre-
venting fraud or mistake " : 19 & 20 Vict. c. 120, s. 22.
" Every order of the Court made in pursuance of the powers conferred on it by
the Act shall specify on what document or documents (if any) the notice re-
ferred to by the 22nd section of the Act shall be placed or indorsed " : Cong,
Ord. 41, rule 24.
" And the judge may, if he thinks fit, require that such document or documents
so indorsed shall be produced in Court for his inspection ; and in case of any such
order relating to lands in a register county or district, the Court may order a
duplicate or a memorial of the same to be registered " : Ibid.
Costs,
" It shall be lawful for the Court, if it shall think fit, to order that all or any
costs or expenses of all or any parties of and incident to any application under
this Act shall be a charge on the hereditaments which are the subject of the
application, or on any other hereditaments included in the same settlement and
subject to the same limitations ; and the Court may also direct that such costs
and expenses shall be raised by sale or mortgage of a sufficient part of such
hereditaments, or out of the rents or profits thereof, such costs and expenses to be
taxed as the Court shall direct ": 19 & 20 Vict. c. 120, s. 29.
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( 633 )
(JHAPTER XL.
LAW OF PEOPEETY AND TETJSTEE BELIEF AMENDMENT
ACTS.
22 & 23 Vict. c. 35 ; 23 & 24 Vict, c. 38.
Directions as to Investment.
Upon the petition, &c., This Court is of opinion, that the petitioners
have authority, under the circumstances in the petition mentioned, to
sell the New £3 per Cent. Annuities standing in the names of the
petitioners, &c., and held by them upon the trusts of the indenture
dated, &c., and to invest the moneys to arise by such sale in the
purchase of perpetual irredeemable annuities of the Midland Eailway
Company, or in Bank Stock, East India Stock, Exchequer Bills, or
£2 10s. per Cent. Annuities, or upon mortgage of any freehold or
copyhold estates in England or Wales. — Directions for payment of
costs. Be McVeagh(Y.-G. W.), May 25, 1861 ; Seton, 773.
Maintenance out of Income — Costs out of Income.
The Court is of opinion that the whole of the income of the trust
funds in the petition mentioned should henceforth be paid to — (the
husband) until further order of the Court, he undertaking to apply
the same for the maintenance and support of — (the wife) and for
the support of the children of the marriage, and Let the same be
allowed accordingly. Let the costs of and incidental to this petition
be taxed by the taxing master and paid out of the income of the
trust property. Be SpiUer, 2 L. T. (N.S.) 71 ; 8 W. B. 333.
Questions for Opinion of the Court.
•'Any trustee, executor, or administrator shall be at liberty, without the in-
stitution of a suit, to apply by petition to any judge of the High Court of Chan-
cery, or by summons upon a written statement to any such judge at chambers,
for the opinion, advice, or direction of such judge, on any question respecting
the management or administration of the trust property, or the assets of any
testator or intestate ; such application to be served upon, or the hearing thereof
to be attended by, all persons iaterested in such application, or such of them as
the said judge ^all think expedient.
"And the trustee, executor, or administrator, acting upon the opinion, advice,
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634 STATUTORY JURISDICTION.
or direction given by the said judge, sliall be deemed, so far as regards his own
responsibility, to have discharged his duty as such trustee, executor, or adminis-
trator in the subject-matter of the said application : provided, nevertheless, that
this Act shall not extend to indemnify any trustee, executor, or administrator in
respect of any act done in accordance with such opinion, advice, or direction as
aforesaid, if such trustee, executor, or administrator shall have been guilty of
any fraud or wilful concealment or misrepresentation in obtaining such opinion,
advice, or direction ; and the costs of such application as aforesaid shall be in
the discretion of the judge to whom the said application shall be made " : 22 &
23 Vict. c. 35, s. 30.
The petition or statement is lO be signed by counsel : 23 & 24 Vict. c. 38, s. 9.
The Court will not, as a general rule, under this Act, entertaia questions of
construction or make orders affecting the rights of parties : Be Lorenz' Settle-
ment, 1 Dr. & Sm. -iOl ; 7 Jur. (N.S.) 402 ; Be MockeWs Trusts, 6 Jur. (N.S.)
142; Be Hooper, 29 Beav. 656; 7 Jur. (N.S.) 595; Be Bunnett, 10 Jur.
(N.S.) 1098.
And as the Act does not give any right of appeal, it was not intended to
decide nice qaestions of law, its object being to procure for trustees at a small
expense the assistance of the Court upon points of minor importance arising in
the manageroent of the trust : Lewin, 443. See also Morgan, 4th ed. 283.
But questions of construction have been decided under the Act : Be Pitts, 5
Jur. (N.S.) 1235 ; 27 Beav. 576 ; Be Michell, 28 Beav. 39 ; Be Davies, 29 Beav.
93; Be Jacob, 29 Beav. 462; Be Muggeridge, 6 Jur. (N.S.) 192; Joh. 625;
Be Elmore, 6 Jur. (N.S.) 1325 ; Be Bogers, 1 Dr. & Sm. 338 ; 6 Jur. (N.S.)
1363 ; Be Simson, 1 J. & H. 89 ; Be Faming, 10 Jur. (N.S.) 307.
And the Court has answered under the Apt questions whether trustees may
properly advance sums under a power of advancement : Be Kershaw, L. R. 6
Eq. 322 ; whether a power to invest in land in fee simple in possession authorized
an investment in the purchase of freehold ground rents^: Be Peyton's Settlement,
L. R. 6 Eq. 322 ; whether bonds of a French railway company were " securities
of a foreign country " within the meaning of a trust for investment : Be Lang-
days Settlement, h. R. lOEq. 39; whether maintenance money was properly
payable out of the capital of a trust fund : Be Tibhs' Trusts, 17 W. R. 304 ;
whether trustees under a power to raise money by mortgage could create a mort-
gage without a power of sale : Be Uhawnefs Trusts, L. R. 8 Eq. 569.
The Court will not express its opinion under the Act upon an hypothetical
case : Be Box, 11 H. & M. 552 ; 10 W. R. 945.
One trustee may apply without his co-trustee: Be Muggeridge, Joh. 625 ;
6 Jar. (N.S.) 142; And a cestui que trust may make the application : Be Ward,
14 W. R. 96.
The petition or statement must be signed by coimsel, and the judge by whom
it is to be answered may require the petitioner or applicant to attend him by
counsel either in chambers or in Court : 23 & 24 Vict. c. 38, s. 9.
The application should be by petition, not summons : Be Dennis, 5 Jur. (N.S.)
1388.
No inquiries can be directed under the Act, and the only effect of the opinion
of the Court is to indemnify the trustee upon the facts stated. No appeal Ues,
and the opinion of the Court under the Act did not under the former practice
prevent a bill being filed : Be Mochetfs Trusts, Job. 628 ; 6 Jur. (N.S.) 142.
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LAW OP PROPERTY AND TRUSTEE RELIEF ACTS. 635
Service of Petition.
The petition should be served on the persons beneficially interested : Re Green,
6 Jur. (N.S.) 530 ; 8 W. R. 403.
Evidence.
No affidavits are admissible on the application: Be Muggeridge's Trusts,
Joh. 625; 6 J ar. (N.S.) 192.
The costs of an application for the opinion of the Court are in the discretion
of the judge : see sect. 30 o:'" the Act, supra. As a general ru'e the costs are
directed to come out of the corpus of the trust estate : Be McVeagl^ (V.-O. W.) 3
Order, p. 633. But where the question concerns the application of income the
costs nave been directed lo be paid out of income : Be Spiller, 2 L. T. (N.S.) 71 ;
8 W. R. 333 ; Order, p. 633.
The costs should be taxed by the taxing master, as in Be Elmore, 6 Jur.
(N.S.) 1325.
Investments by Trustees.
Cash under the Control of the Court.
" When a trustee, executor, or administrator shall not, by some instruments
creating his trust, be expressly forbidden to invest any trust fund on real secu-
rities, in any part of the United Kingdom, or on the Stock of the Bank of
England or Ireland, or on Bast India Stock, ;t shall oe lawful for such trustee,
executor, or administrator to invest such trust fund on such securities or stock ;
and he shall not be liable on that account as for a breach of trust provided that
such investment shall in other respects be reasonable and proper " : 22 & 23 Vict.
c. 35, s. 32. As to East India Stock see 30 & 31 Vict. c. 132 ; Lewin, 252.
It shall he lawful for the Lord Chancellor, &c. " to make such General Orders
from time to time as to the investment of cash under the control of the Court,
■either in the Three per Cent. Consolidated or Reduced or New Bank Annuities, or
in such other stocks, funds, or securities as he or they shall, with such advice or
assistance, see at'": 23 & 24 Vict. c. 38, .s. 10.
And it shall be lawful "or the Lord Chancellor, &o. " to make such orderc as he
or they shaU deem proper for the conversion of any Three per Cent. Bank
Annuities now standing or which may hereafter stand in the name of the
Accountant-General of ihe said Court of Chancery in trust in any cause or
matter, into any such other stocks, funds, or securities upon which, by any such
General Order as aforesaid, cash under the control of the Court may be Invested ;
all orders for such conversion of bank annuities into other funds or securities to
be made upon petition to be presented by any of the parties interested in a sum-
mary way, and such parties shall be served with notice thereof as the Court shall
direct '" : Ibid. See Be Briscoe, 4 N. R. 311 ; CocMmm v. Peel, S De G. F. & J.
170 ; Be Langford, 2 J. & H. 458 ; Re Ingram, 11 W. R. 980 ; Vidler v. Parrott,
12 W. R. 976.
'■ When any such general order as aforesaid shall have been made it shall be
lawful for trustees, executors, or administrators having power to invest their
trust funds upon government securities, or upon ; rliamentary stocks, funds, or
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636 STATUTOEY JDBISDICTION.
securities, or any of them, to invest such trust funds, or any part thereof, in any
of the stocks, funds, or securities in or upon which hy such general order cash
under the control of the Court may from time to time he invested": 23 &
24 Vict. c. 38, s. 11.
Cash under the control of the Court may be invested in Bank Stock, East
India Stock, Exchequer Bills, and £2 10s. per Cent. Annuities, and upon mortgage
of freehold and copyhold estates respectively in England and Wales ; as well as in
Consolidated £3 per Cent. Annuities, Eeduced £3 per Cent. Annuities, and New
£3 per Cent. Annuities : Gen. Order, Feb. 1, 1861.
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( 637 )
CHAPTER XLT,
PEISONERS EELIEF ACT.
23 & 24 Vict. c. 149.
Assignment of Counsel and Solicitor — Sect. 2,
Upon motion, &c., who alleged that the Deft B. is a prisoner in
HoUoway Prison, as by certificate, &o., appears ; that in pursuance of
the 23 & 24 Vict. o. 149, the official solicitor has made his report,
dated, &c., whereby it appears that the said prisoner is detained in
custody for not, &c. [state the contempf], and that he is unable by
reason of his poverty to employ a solicitor to, &o. [state the act to be
done], and upon reading the said certificate and report their Lordships
do order that — be assigned, counsel for the said Deft B., and — , one
of the solicitors of this Court, be appointed the solicitor for the said
Deft to, &c. [state the ad to he done'\ clear his contempt and defend this
action in forma 'pauperis.
The solicitor to the Suitors' Ifund [now the ofBcial solicitor], or in case of his
illness or unavoidable absence some officer of the Court of Chancery to he ap-
pointed by the Lord Chancellor, is to visit the Queen's Prison quarterly and
examine the prisoners confiaed there for contempt, and report his opinion, &c.,
" anaHhei-eupon it shall be lawful for the Lord Chancellor, if he shall think fit, to
assign a solicitor to any such prisoner, not only for defending him in forma
pauperis, but generally for taking such steps on his behalf as the nature of the
case may require : 23 & 24 Vict. c. 149, s. 2.
Note. — Under the provisions of the 25 & 26 Vict. c. 104, and 28 Vict. c. 117,
the prisqn at Holloway has been substituted for Whitecross Street Prison, which
had been substituted for the Queen's Prison.
Prisoner brought to Bar of the Court — Assignment of Counsel, dc, without
Inquiry — Prisoner turned over— Sect. i.
The Deft B. being this day brought to the bar of this Court by
virtue of a writ of habeas corpus cum causis directed to the sheriff of —
for his contempt in not, &c. [state the contempt], and the Deft B. now
making oath that he is unable by reason of his poverty to employ a
solicitor to, &c., their Lordships do order that — be assigned counsel
for the said Deft B., and — , one of the solicitors, &o., be appointed the
solicitor, &c., and upon motion by counsel for the Pit Let the said
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638 STATUTOEY JURISDICTION.
Deft be turned over to HoUoway Prison and remain there until, &c.,
clear his contempt, and this Court make other order to the contrary.
Prisoner hrffught to Bar of the Court — Inquiry as to Poverty — Sect. 4.
The Deft B. being this day brought to the bar of this Court by
virtue of a writ, &c., for his contempt, &c., and making oath, &c., Let
the said Deft B. be turned over, &c., and remain, &c. And Let an
inquiry be made whether the said Deft is unable by reason of his
poverty to employ a solicitor to put in, &a. And the official solicitor
[or — , one of the solicitors of this Court] is to conduct such inquiry
on behalf of the said Deft B. and to have notice of all proceedings
thereon. And after such inquiry shall have been made such further
order shall be made as shall be just.
PftCSOtfER BROUGHT TO BaR OP THE CoURT — PoVEETT — SeCT. 4.
In all cases where in pursuance of the 6th Rule of the 11 Geo. 4 &
1 Will. 4, c. 36, a deft shall be brought to the bar of the Court, and shall make
oath that he 's anable by reason of his poverty to employ a solicitor to put in his
answer, the Court, if not satisfied of the truth of that allegation, may direct an
inquiry as to the truth thereof, and may appoint a solicitor to conduct such
inquiry on behalf of such deft, and if it is ascertained by means of such iaquiry,
or if the Court '.s satisfied without such inquiry, that such deft is imable by reason
of poverty to employ a solicitor to put in his answer, the Court may thereupon
make such order as 's authorized by the said 6th Rule after a report by the
master : 2S & 24 Vict. o. 149, s. 4.
By the 6th rule of 11 Geo. 4 & 1 Will. 4, c. 36, referred to above, if a deft
upon being brought before the Court upon an habeas corpus should make
oath (which, should be administered to him by the registrar and he was to be
examined in open Court) that he was unable by reason of poverty to employ a
solicitor.
Assignment of Counsel, &c., after Eeport op GtOvernor of Gaol —
Sect. 5.
Upon motion, &c., who alleged that it appears by the report of the
Governor of — Gaol, dated, &c., and made in pursuance of the Act of
Parliament 2S & 24 Vict. c. 149, that the Defi; B. is a prisoner in the
said, gaol for not, &c. ; and that the said Deft has made oath before one
of the visiting justices of the said gao!" [or, s Commissioner for taking
oaths in this Court] that he is unable by reason of his poverty to
employ a solicitor, &c., and thai, it appears by the certificate o" the
official solicitor in the margin hereof that he hath, pursuant 'm the
order of the Lord Chancellor, ascertained such statemeuu to be true,
and upon reading, &c., Let — be assigned counsel, &c., and — be
appointed solicitor for the said Deft B. to, &c., clear his contempt, and
defend this action in forma pauperis.
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PRISONERS RELIEF ACT. 639
Keports from other Prisons — Oath as to Poverty — Sect. 5.
When any person shall tie committed to any prison other than the Queen's
Prison, under any wri t or order of the Court of Chancery, the gaoler or keeper of
the prison in which such person shall be confined shall within fourteen days after
such person shall have been in the custody of such gaoler make a report, &c.,
" and if such prisoner shall make oath before one of the visiting justices of such
gaol, or a commissioner for taking oaths in the Court of Chancery, that he is
unable by reason of poverty to employ a solicitor, the report shall contain a state-
ment to that effect, and it shall thereupon be lawful for the Lord Chancellor to
direct the solicitor to the Suitors' Fund [the official solicitor] to ascertain the truth
of the statement, and if true, to take such steps on behalf of any such prisoner as
the nature of his case may require ; and the Lord Chancellor may thereupon, if
he shall see fit, make such order or orders as he is empowered to make under the
second section of this Act": sect. 5.
Examination of Prisoners and other Persons on Oath.
It shall be lawful for the solicitor to the Suitors' Fund [now the official solicitor],
or other officers visiting the prison as aforesaid, to examine the prisoners, and all
other persons whom he^ may think it proper to examine, apon oath, and to ad-
minister an oath or oaths to any such prisoner and other persons accordingly, and
to cause any officers, &o., to produce papers, &c. : sect. 3.
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CHAPTER XLII.
THE COMPANIES ACTS, 1862 and 1867.
25 & 26 Vict. c. 89; 30 & 31 Vict. c. 131.
Winding-up by the Court.
Compulsory Order.
Upon the petition of the above-named company [or, of — , a creditor,]
\or, contributory,] of the above-named company], on the — day of — ,
preferred unto, &c., and upon hearing counsel for the petitioners, and
for — ; and upon reading the said petition ; an affidavit of • — • [a peti-
tioner] filed, &c., verifying the said petition ; am affidavit of L. M. filed
the — day of — ; the London Gazette of the — day of — ; the — news-
paper of the — day of — \enter any other newspapers], each contain-
ing an advertisement of the said petition [enter other evidence] ; Let
the said — company be wound up by this Court under the provisions
of the Companies Acts, 1862 and 1867. Let the costs of the Peti-
tioners and of — be taxed by the taxing master and paid out of the
assets of the said company.
If ordered : But in taxing such costs only one set of costs is to be
allowed between the said — [contributories] and one set of costs
between the said — [creditors].
Winding-up subject to Bights of Execution Creditor.
Let the Hill Pottery Company, Limited, be wound up under the
provisions of the Companies Acts, 1862 and 1867 , but without preju-
dice to any of the rights of the respondents, the Merchant Banking
Company, Limited, who are execution creditors of the said company.
Let the costs of the said Merchant Banking Company, Limited, be
taxed by the taxing master, and paid out of the assets of the said
HiU Pottery Company, Limited. Be Hill Pottery Company (M. K.),
March 24, 1866.
Winding-up by the Court.
Judicature Act, 1876.
Assets, how administered.
In the winding-up of any company under the Companies Acts, 1862 and 1867,
whose assets may prove insufficient for the payment of its debts and liabilities and
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THE COMPANIES ACTS, 1862 and 1867. 641
the costs of winding-up, the same rules shall prevail and be observed as to the
respective rights of secured and unsecured creditors, and as to debts and liabilities
provable, and as to the valuation of annuities and future and contingent liabilities
respectively, as may be in force for the time being under the law of bankruptcy
with respect to the estates of persons adjudged bankrupt ; and all persons who in
any such case would be entitled to prove for and receive dividends out of the
assets of any such company may come in under the winding-up of such company,
and make such claims against the same as they may respectively be entitled to
by virtue of this Act : Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10.
WmDINQ-UP BY THE OotTRT.
When Order may he made — Companies Act, 1862, s. 79.
" A company under this Act may be wound up by the Court as hereinafter
defined under the following circumstances : (that is to say), —
(1.) Whenever the company has passed a special resolution requiring the
company to be wound up by the Court :
(2.) Whenever the company does not commence its business within a year
from its incorporation, or suspends its business for the space of a whole
year:
(3.) "Whenever the members are reduced in number to less than seven :
(4.) Whenever the company is unable to pay its debts :
(5.) Whenever the Court is of opinion that it is just and equitable that the
company should be wound up " : 25 & 26 Vict. c. 89, s. 79.
As to definition of the words " special resolution " in sub-sect. 1, see sect. 51 of
Act:
Where there is default of any regulations as to voting, see sect. 52. And
as to the registry of such special resolutions, see sect. 53. Where a winding-
up resolution is good in itself, it is not invalidated by being associated with
resolutions which were not regularly passed : £e Irrigation Company of France,
L. E. 6 Ch. 176.
" The Court may, as to all matters relating to the winding-up, have regard to
the wishes of the creditors or contributories, as proved to it by any sufficient
evidence ; and may, if it thinks it expedient, direct meetings of the creditors or
contributories to be summoned, held, and conducted in such manner as the Court
directs, for the purpose of ascertaining their wishes, and may appoint a person to
act as chairman of any such meeting, and to report the result of such meeting to
the Court. In the case of creditors, regard is to be had to the value of the debts
due to each creditor ; and in the case of contributories to the number of votes
conferred on each contributory by the regulations of the company ": 25 & 26 Vict.
c. 89, s. 91.
See further as to section 91 and cases under it, p. 672.
When a creditor who cannot obtain payment of his debt applies for a winding-
up order, the Court will, ex dehito justitise, make it, if he brings the case within
the Act : He London Sulurlan Bank, L. E. 6 Oh. 641, 643 ; Bower v. The Hope,
&c.. Society, 11 H. L. C. 389 ; Western of Canada Oil Company, L. E. 17 Eq. 1.
But the 79th section is not compulsory. And where the liability of the
petitioner, a shareholder, was small, and the great body of shareholders were
opposed to the winding-up, the Court refused to make the order: Be London
Suhiwban Bank, L. E. 6 Ch. 641.
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642 STATUTOEY JUEISDICTION.
So, too, where a resolution to wind up voluntarily had heen regularly passed,
the Court refused, upon the petition of a shareholder, to interfere by ordering a
compulsory winding-up or a winding-up under supervision against the wishes of
nearly all the shareholders : Be Irrigation Gompany of France, L. E. 6 Ch. 176.
And a creditor is not entitled ex debito justitice to a compulsory order as between
himself and other creditors, though he is so entitled as between himself and the
company : Be West Hartlepool Ironworks Co., L. E. 10 Ch. 618.
Upon a shareholder's petition the Court will consider whether the other share-
holders and the creditors agree in thinking that winding up is the best course :
Be Professional, &c.. Building Society, L. E. 6 Ch. 856.
Even upon a creditors' petition to wind up compulsorily, where the debt was
small, and the petition opposed to the wishes of the great majority of creditors,
the Court has refused to make a compulsory order : Be Langley Mill Company,
L. E. 12 Bq. 26.
It has been held that the Court will not apply the machinery of a statutory
winding-up where there are only a few shareholders : Be Natal, &c.. Go., 1 H.
& M. 639 ; Be S^a and Biver Marine Insurance Go., L. E. 2 Bq. 545 ; contra.
Be Sanderson's Patent Association, L. E. 12 Bq. 188.
But the Court will make such an order, although the shareholders are very
few, where the matter has to be investigated, and there is an overwhelming influ-
ence on the part of a shareholder : Be West Surrey Tanning Go., L. E. 2 Bq. 737.
So, too, where it is proved that there was no bona fide intention to carry on the
company in a proper manner : Be London and Gounty Goal Go., L. E. 3 Bq. 355.
Upon hearing the petition the Court may dismiss the same with or without
costs, may adjourn the hearing conditionally or unconditionally, and may make
an interim order, or any other order that it deems just : 25 & 26 Vict. c. 89,
s. 86.
And the Court may, as to all matters relating to the winding-up, have regard
to the wishes of the creditors or contributories, as proved to it by any sufficient
evidence ; and may, if it thinks it expedient, direct meetings of the creditors or
contributories to he summoned, held, and conducted in such manner as the Court
directs, for the purpose of ascertaining their wishes, and may appoint a person to
act as chairman of any such meeting, and to report the result of any such
meeting to the Court: 25 & 26 Vict. c. 89, s. 91.
But where a judgment creditor applies for a winding-up order, the Court has
refused to delay the order until arrangements be made to pay the creditors : Be
Home Assurance Association, L. E. 12 Eq. 112. See also Be International Gon-
tract Co., Ex parte Spartali amd Tabor, 14 L. T. (N.S.) 726 ; Be General Boiling
Stock Co., 34 Beav. 314.
Where, however, upon the petition of a creditor for a compulsory winding-up,
the majority of other creditors desired a postponement to consider the propriety of
a voluntary winding-up, the Court will have regard to the wishes of the majority
of the creditors : Be Langley Mill Co., L. E. 12 Bq. 26.
Where an action has been brought in respect of a disputed policy against
a company in voluntary liquidation, upon a petition by the claimant for com-
pulsory winding-up, the liquidators undertaking to hold themselves personally
liable lo pay what might be found due, and to set aside out of the assets a suffi-
cient sum for the amount of claim, interest, and costs, the petition was ordered
to stand over until after trial of the action : Be Imperial Guardian Life Society,
L. E. 9 Eq. 447.
There is no rule against a petitioner's withdrawing his petition upon payment
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THE COMPANIES ACTS, 1862 and 1867 643
of his debt and costs : Be Times Life Assurance Co., L, E. 9 Eq, 382 ; Be Imperial
Guardian Life Society, L. K. 9 Eq. 447 ; Be Humher Ironworks Co., L. E.
2 Eq. 15.
Attempts to enforce, by means of a winding-up petition, the payment of a
debt the liability to which is lond fide disputed by the company, are not en-
couraged by the Court ; and in such cases the petitions have been ordered to stand
over till the debt was established : Be Catholic Publishing Go., 2 De Gr. J. & S.
lie, per Turner, L.J. ; Be The Universal Bank, 14 W. E. 906.
But in a proper case the Court will take upon itself to decide the dispute at
the hearing of the petition, and will make the winding-up order without waiting
till the debt is established at law : Buckley, 2nd ed. 183, citing Be Imperial
Silver Quarries Co., 16 W. E. 'Z'AO.
Where a person claiming to be a creditor, and who had brought his action,
presented a petition for winding up, the petition was ordered to be retained to
abide the result at law, and to be dismissed with or without costs, according to
whether it failed or succeeded : Be Inventors' Association, 13 W. E. 1033.
Where a creditor's petition to wind up a company is opposed on the ground
that the petitioning creditor's debt is disputed, the Court will not, as a matter of
course, direct the petition to stand over, with leave to bring an action. The
debt must be bonafi.de disputed : King's Cross Industrial Co., L. E. 11 Eq. 149.
In order to give the company sought to be wound up an opportunity of paying
the debt demanded, the winding-up is sometimes made with a direction that it
be not drawn up for a certain time : S. 0.
The provisions of the Act for winding up a company in default of payment of
debts, do not apply where there is a bona fide dispute as to the amount due : Be
Brighton Club Co., 35 Beav. 204.
Under sub-sect. 2 : The jurisdiction to wind up a company where it does not
commence its business within a year from its incorporation, is discretionary with
the Court. If delay is satisfactorily accounted for, the order to wind up may be
refused : Buckley, 2nd ed. 183, citing Metropolitan Bailway Warehousing Co.,
15 W. E. 1121 ; 17 L. T. 108 ; see also Tumacocori Mining Co., L. E 17 Eq. 534.
Where two companies become amalgamated, a dissentient shareholder is not
entitled to a winding-up order on the ground that since the amalgamation the
company sought to be wound up had ceased to carry on business : Be National
Financial Association, 14 W. B. 907.
A company does not suspend its business within the meaning of sub-sect. 2,
where being established for some purposes it abandons one of them, and carries on
the others, if the abandonment does not alter the fundamental principle of the
company : Be Norwegian Iron Co., Limited, 35 Beav. 223.
Under sub-sect. 3 : The Winding-up Acts were passed for the purpose of wind-
ing ujj companies where the shareholders are numerous : Be Natal, &c., Co.,
1 H. & M. 639. Therefore, in a company where there were only seven share-
holders, and no debts, the Court dismissed a winding-up petition with costs : Be
Sea and Biver Marine Insurance Co., L. E. 2 Eq. 545.
But, as before stated, even where the shareholders are few the Court will, in a
proper case, such as the preponderating iniiuence of a single shareholder, or in
the case of want of bona fides in the company, make a compulsory order to
wind up : Be West Surrey Tanning Co., L. E. 2 Eq. 737 ; Re London and County
Coal Co., L. E. 3 Eq. 355.
So, too, where the shareholders were few, and no debts: Re Sanderson's
Patents Association, L. %^-fgfe(^^y Microsoft®
A T Z
644 STATUTORY JURISDICTION.
As to sub-sect. 4, see sect. 80 of the Aet, infra.
Under sub-sect. 5 : The language is similar to that used in the former Wind-
ing-up Act, 11 & 12 Vict. c. 45, b. 5 : see ohservations of Lord Cottenham in
8packmcm's Case, 1 Mac. & G. 173.
It is held restricted to matters ejusdem generis with the four previous heads,
and points to something either shewing insolvency, or that which is indicated in
the other heads of the section, an incapability of continuing the business for some
other reason : Be Suburban Hotel Co., L. R. 2 Oh. 737.
But mere mismanagement, or loss, or inability to pay debts not actually due, is
not a ground on which the Court will consider it just and equitable to wind up
a company under this section: Re Anglo- Greek Steam Co., L. R. 2 Eq. 1; Me
Joint Stock Coal Co., L. R. 8 Eq. 146 ; Se European Life Assurance Society,
L. R. 9 Eq. 122.
Nor, although a shareholder may have a right on behalf of himself and all other
shareholders to restrain a company from doing that which is ultra vires, does it
follow that under this sub-section he is entitled to a compulsory winding-up : Be
Irrigation Company of France, L. R. 6 Ch. 176, 184.
But if there be insolvency, or anything which is equivalent to a test of insol-
vency, and if there be circumstances that the company has not for a certain time
commenced business, or has suspended business, that there is a test given to the
Court by which to prove that the business cannot be carried on, in those cases
the company may be wound up : Me Suburban Hotel Co., L. R. 2 Ch. 450, per
Lord Cairns. See also Me Great Northern Copper Mining Co., 17 W. R. 462 ; Be
European Life Assurance Society, L. R. 9 Eq. 122.
Where there had been a special resolution passed for a voluntary winding-up,
and the only question was whether the voluntary winding-up should be con-
tinued, or a compulsory order made by the Court, the Court being of opinion that
the company was a bubble company, made the compulsory order : Me West Surrey
Tanning Co., L. R. 2 Eq. 737.
As regards foreign companies, a company whose operations are out of the juris-
diction, but whose business transactions are conducted within the jurisdiction,
may be wound up under the provisions of the Act : Be Madrid Mailway, 2 M. &
G. 169 ; 3 De G. & Sm. 127 ; Me Peruvian Mailway Co., L. R. 2 Ch. 617.
And where the memorandum and articles of association shew an intention of
some kind of management and business within the jurisdiction, and after registry
the company does not carry on business within the jurisdiction, the Court has
jurisdiction to make a winding-up order : Me General Company for Promoting
Land Credit, L. R. 5 Ch. 363.
The Court will not make an order to wind up a company upon the petition of
a shareholder who is in an'ear for calls : Me European Life Assurance Society,
L. R. 10 Eq. 403 ; Me Steam Stoker Co., L. R. 19 Bq. 416.
Company "unable to pay its Dkbts."
Companies Act, 1862, s. 80.
" A company under this Act shall be deemed to be unable to pay its debts :
(1.) Whenever a creditor by assignment or otherwise, to whom the company
is indebted, at law or in equity, in a sum exceeding fifty pounds then
due, has served on the company, by leaving the same at their registered
office, a demand under his hand requiring the company to pay the sum
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THE COMPANIES ACTS, 1862 and 1867. 645
so due, and the company has for the space of three weeks succeeding
the service of such demand neglected to pay such sum, or to secure or
compound for the same to the reasonable satisfaction of the creditor :
■(2.) Whenever, in England and Ireland, execution or other process issued on
• a judgment decree or order obtained in any Court in favour of any
creditor, at lav? or in equity, in any proceeding instituted by such
creditor against the company, is returned unsatisfied in whole or in part :
(3.) Whenever, in Scotland, the indudoe of a charge for payment on an
extract decree, or an extract registered bond, or an extract registered
protest, have expired without payment being made :
(4.) Whenever it is proved to the satisfaction of the Court that the company
is unable to pay its debts" : 25 & 26 "Vict. o. 89, s. 80.
The demand for payment under sub-sect. 1 may be made by a creditor for pay-
ment of his debt at a company's unregistered office, where the company has no
registered oflBce : Re British and Foreign Oas Co., 11 Jur. (N.S.) 559 ; 13 W. E.
649.
The provision for winding up a company in default of payment of a debt ex-
ceeding £50 three weeks after notice, does not apply where there is a bona fide
dispute as to the amount due : Se Brighton Club Go., 35 Beav. 204.
The word "neglected" is construed as meaning the omission to pay without
reasonable excuse : Se London and Paris Banking Co., L. R. 19 Eq. 444.
The three weeks mentioned in sub-sect. 1 must have elapsed before the presen-
tation of the petition : lie Catholic Publishing Co., 2 De G. J. & S. 116.
Inability of a company to pay its debts under sect. 80, is an inability to pay
debts actually due, for which a creditor could claim immediate payment : Be
European Life Assurance Society, L. K. 9 Bq. 122.
And the Court will not take into account the possible liabilities or profits which
may accrue in respect of future business : S. C.
As regards the insolvency or inability to pay debts of life assurance companies,
see 33 & 34 Vict. c. 61 ; post, p. 683.
Under svh-sect. 2, where a judgment creditor is told by the solicitors of the
company, the debtors, that there are no assets, it is sufficient to relieve him from
the necessity of issuing execution : Be Flagstaff Mining Co., L. R. 20 Eq. 268.
And under sub-sect. 4 the dishonour of a bill of the company was under the
circumstances considered sufficient proof of inability to pay debts : Be Qlobe New
Patent Iron Co., L. E. 20 Eq. 337.
Meaning of Expression "the Couet."
Gompanies Act, 1862, s. 81.
" The expression ' the Coiu-t,' as used in this part of this Act, shall mean the
following authorities : (that is to say,)
In the case of a company engaged in working any mine within and subject
to the jurisdiction of the Stannaries— the Court of the Vice- Warden of
the Stannaries, unless the Vice- Warden certifies that in his opinion the
company would be more advantageously wound up in the High Court
of Chancery, in which case 'the Court' shall mean the High Court of
Chancery :
In the case of a company registered in England, that is not engaged in work-
ing any such mine as aforesaid— the High Court of Chancery :
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646 STATUTOEY JURISDICTION.
In the case of a company registered in Ireland-^the Court of Chancery in
Ireland :
In all cases of companies registered in Scotland— the Court of Session in
either division thereof :
" Provided that where the Court of Chancery in England or Ireland makes an
order for winding up a company under this Act, it may, if it think fit, direct all
suhsequent proceedings for- winding up the same to he had in the Court of Bank-
ruptcy having jurisdiction in the place in which the registered office of the com-
pany is situate ; and thereupon such last-mentioned Court of Bankruptcy shall for
the purpose of winding up the company he deemed to be 'the Court' within the
meaning of the Act, and shall have, for the purposes of such winding-up, all the
powers of the High Court of Chancery, or of the Court of Chancery in Ireland
as the case may require " : 25 & 26 Vict. c. 89, s. 81.
"Where a company established for working mines in Cornwall was registered in
the Stannaries Court, but had its registered office in London, it was held to he a
company " engaged " in working a mine in the Stannaries, and that the Stanna-
ries Court, and not the Court of Chancery was the proper jurisdiction for winding
up : East Botallack Mining Co., 34 Beav. 82.
Where a company has been established for working mines within the district of
the Stannaries, the fact that some of the objects of the company are to be carried
out beyond the district, does not exempt the company from the jurisdiction of the
Stannaries Court : Be Penhale SilverLead Co., L. E. 2 Ch. .398.
And the jurisdiction conferred by the 35th section to rectify the register of
companies within the district of the Stannaries does not exclude the jurisdiction
of the superior Courts of Law and Equity : S. C.
Where an order for winding up has been made under the principal Act the
Court may direct all subsequent proceedings to be had in a County Court ; and
such County Court shall for the jiurpose of winding up be deemed " the Court " :
25 & 26 Yict. c. 89, s. 41.
And the winding-up proceedings may be transferred from one County Court to
another : sect. 42.
As regards industrial and provident societies registered under the 25 & 26 Vict,
c. 17, they may be wound up either by the Court or voluntarily, in the same
manner and under the same circumstances as a company may be wound up under
the Winding-up Acts : 25 & 26 Vict. c. 87, s. 17.
And the Court having jurisdiction in the winding-up will be the County Court
of the district in which the office of the society is situated.
Petition to vtind up — ^Who may petition.
Oonvpanies Act, 1862, s. 82 — Companies Act, 1867, s. 40.
" Any application to the Court for the winding-up of a company under this
Act shall be by petition ; it may be presented by the company, or by any one or
more creditor or creditors, contributory or contributories of the company, or by
all or any of the above parties, together or separately ; and every order which may
he made on any such petition shall operate in favour of all the creditors and all
the contributories of the company, in the same manner as if it had been made
upon the joint petition of a creditor and a contributory " : 25 & 26 Vict. c. 89,
s. 82.
" No contributory of a company under the principal Act sliall be capable of
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THE COMPANIES ACTS, 1862 and 1867. 647
presenting a petition for winding up such company unless the members of the
company are reduced in number to less than seven, or unless the shares in respect
of which he is a contributory, or some of them, either were originally allotted to
him, or have been held by him and registered in his name for a period of at least
six months during the eighteen months previously to the commencement of the
winding-up, or have devolved upon him through the death of a former holder :
" Provided that where a share has, during the whole or any part of the six
months been held by or registered in the name of the wife of a contributory, either
before or after her marriage, or by or in the name of any trustee or trustees for
such wife or for the contributory, such share shall for the purposes of this section
be deemed to have been held by and registered in the name of the contributory " :
Companies Act, 1867 (30 & 31 Vict. c. 131), s. 40.
The assignee of a judgment debt, although of a less amount than £50, is entitled
to present a winding-up petition : lie London and Birmingham Flint Glass Co.,
1 De G. F. & J. 257.
Semble, that, an equitable debt will support such a petition.
Where the petitioner was a creditor only for the sum of £65 of the company
sought to be wound up and the debt was attached to the Lord Mayor's Court, the
petition was, imder the circumstances, dismissed with costs : Ee European Banh-
ing Co., L. E. 2 Eq. 521.
A petition for winding up a company presented by a shareholder who at the
date of such presentation is in arrears of payment of calls due from him to the
company, will be dismissed : Be European Life Assurance Society, L; E. 10 Eq.
403.
A holder of fully paid-up shares in a limited liability company is a contributory
within the meaning of the Companies Act, 1862: Be Anglesea Colliery Co., L. E.
2 Eq. 379 ; S. C, L. R. 1 Ch. 555.
And a fully paid-up shareholder in a limited company can present a petition
under the Act for winding up the company : Be National Savings Bank Asso-
ciation, L. E. 1 Ch. 547 ; Be Londrni Armoury Co., 11 Jur. (N.S.) 963.
But where the creditors of a company do not press for payment of their debts,
the holder of fully paid-up shares must shew special circumstances to entitle him
to a winding-up order: Be Patent Artificial Stone Co., 11 Jur. (N.S.) 4; 13
W. E. 205 ; Be Patent Bread Machinery Co., 14 W. E. 787 ; Be Lancashire
Brick and Tile Co., 34 Beav. 330.
When a creditor is aware that a petition to wind up has been presented, he is
not at liberty to present a second petition without the risk of having to pay costs :
Buckley, 2nd ed. 193, citing Be Accidental and Marine Insurance Co., 36 L. J.
(Oh.) 75.
But if the circumstances of the case are peculiar, the costs of the second petition
may be allowed : Be Hurnber Ironworks Co., L. E. 2 Eq. 15.
A creditor of a company who has presented a petition for winding up is entitled
to dismiss his petition with costs, notwithstanding the objection ol another creditor
appearing upon it : Be Home Assv/rance Association, L. E. 12 Eq. 59 ; Be Times
Life Assurance Co., L. E. 9 Eq. 382.
Where the creditor brings his petition to a hearing after an offer from the com-
pany to pay his debt and costs, he will not be allowed costs incurred after the
offer : Be Times Life Assurance Co., L. E. 9 Eq. 382 ; Be Imperial Guardian
Ufe Society, L. E. 9 Eq. 447.
Where the petitioner is the holder of fully paid-up shares, and his case fails, a
creditor appearing upon the petition cannot convert a shareholder into a creditor's
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648' STATUTOEY JURISDICTION.
petition, and claim an order to wind up : Re Spence's Patent Cement Co., L. R.
9 Eq. 9.
A society within the Building Societies Act, 1874 (37 & 38 Vict. c. 42), may
he dissolved in certain events, and " by winding up either voluntarily under the
supervision of the Court, or by the Court, if the Court " (i.e. the County Court,
see sect. 4) " shall so order, on the petition of any member, authorized by three-
fourths of the members present at a general meeting of the society specially called
for the purpose to present the same on behalf of the society, or on the petition of
any judgment creditor for not less than £50, but not otherwise " : 87 & 38 Vict,
c. 42.
CONCUEEENT PETITIONS.
Where two petitions for winding up a company had been presented, one by a
paid-up shareholder, and the other by a shareholder who had only paid his de-
posit, one order was made on both petitions, but the carriage of the order was
given to the paid-up shareholder : Be Constantinople and Alexandria Hotels Co.,
13 W. R. 851.
Where there had been two concurrent petitions for winding up, and the one
presented last came on to be heard the first, an application for the transfer of the
latter to the Court in which the former was presented was refused : Be British
and Foreign Oas Co., 11 Jur. (N.S.) 559.
But upon the hearing of the first presented petition an order was made deduct-
ing the payment of the costs of the other petition out of the assets of the com-
pany : S. 0.
Where a petition was pending in one branch of the Court, and a provisional
liquidator had been appointed, but the petitioner had failed to prosecute the peti-
tion, a winding-up order was granted in the interim on another petition in
another branch of the Court : Be Consolidated Bank, 14 L. T. 656.
When a petition to wind up has been presented, another petition for the same
purpose subsequently presented in another branch of the Court will be ordered to
be transferred : Be West Hartlepool Ironworks Co., L. E. 10 Ch. 629.
Two companies cannot for convenience sake, because their affairs are much
mixed up together, be included in one winding-up order, though separate lists of
contributories be made out for each company: Buckley, 2nd ed. 209, citing
Shields Marine Association, 16 W. R. 69.
But in the case of life assurance companies, where the business has been trans-
ferred to another company under arrangement, in pursuance of which the subsi-
diary company or its creditors have claims against the principal company, then, if
the principal company is being wound up, the Court shall, if satisfied that the com-
pany alleged to be subsidiary is subsidiary, order the same to be wound up in
conjunction with the principal company : 35 & 36 Vict. c. 41, s. 4.
Where any subsidiary company and principal company are being wound up by
different branches of the Court, the Court to which appeals from such branches lie
shall make an order directing in which branch the winding-up of such companies
is to be carried on : Ibid.
Title of Petition.
" Every petition for the winding up of any company by the Court, or subject
to the supervision of the Court, and all notices, affidavits, and other proceedings
under such petition, shall be intituled in the matter of the Companies Acts, 1862
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THE COMPANIES ACTS, 1862 and 1867. 649
and 1867, and of the company to which such petition shall relate, describing the
company by its most usual style or firm " : Gen. Ord. Nov. 1862, rule 1.
And petitions, notices, Affidavits, and other proceedings under petitions, after
the 15th of April, 1868, are to be intituled in the matter of " The Companies
Acta, 1862 and 1867."
These directions must be strictly complied with except under special circum-
stances : Marezzo Marble Co., 22 W. E. 248.
Advertisement of Petition.
" Every such petition shall be advertised seven clear days before the hearing as
follows : —
(1.) In the case of a company whose registered office, or if there shall be no
such office, then whose principal or last known principal place of
biisiness is or was situate within ten roiles from Lincoln's Inn Hall,
once in the London Gazette, and once at least in two London daily
morning newspapers.
(2.) In the case of any other company, once in the London Gazette, and once
at least in two local newspapers circulating in the district where such
registered office, or principal or last known principal place of business,
as the case may be, of such company is or was situate."
" The advertisement shall state the day on which the petition was presented,
and the name and address of the petitioner, and of his solicitor and London agent
(if any) " : Gen. Ord. Nov. 1862, rule 2.
Where an advertisement is required for any purpose, except where otherwise
directed by the rules, the advertisements shall be inserted once in the London
Gazette, and in such other newspaper or newspapers and for such number of times
as may be directed. The judge may in such cases as he shall think fit dis-
pense with any advertisement required by the rules : Gen. Ord. Nov. 1862,
rule 53.
Where the petition had been advertised in only one London newspaper besides
the London Gazette, the Court refused to dispense, under rule 53, with the adver-
tisements in a second London newspaper required under the rules : Re London,
India Rubber Co., 14 W. E. 527.
In the latter case, the petition was readvertised, and the order for winding up
was dated seven days after the first advertisement : S. C.
But where the advertisement in the London Gazette had not been inserted
seven clear days before the day for which the petition was answered, the Court
dispensed with a fresh advertisement : Re Land and Sea Telegraph Co., 18 W. E.
1150 : Re City and County Rank, L. E. 10 Ch. 470.
And where the advertisements had' been duly published in the Gazette, but in-
correctly published in the local newspapers, upon the winding-up petition of a
creditor fresh advertisements were dispensed with, no one opposing : Re Worthing
Sea Souse Hotel, W. N. (1872) 74.
Where the petition for winding up cannot be heard on the day appointed by
advertisement, by reason of the advertisement not having been inserted in proper
time, the petition has been ordered to stand over for a fortnight, with liberty to
insert fresh advertisements : Re London and Westminster Wine Co., 1 H. & M.
561 ; 12 W. E. 44.
The advertisement of the petition, under the General Orders of 1862 and 1867,
is of itself sufficient notice to justify the appearance upon it of parties entitled to
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650 STATUTORY JURISDICTION.
appear: Be Marlborovgh Club Co., L. E. 1 Eq. 217; see also jBe^m»?erBom,L.K.
2 Bq. 231.
The advertisement, not the presentation of the petition, is the test of the
priority of the proceedings: Be United Ports and General Insurance Co., 39
L. J. (Oh.) 146, cited in Buckley, 2nd ed. 493.
Upon a motion to discharge (on the ground of irregularity) an order for con-
tinuing a voluntary winding up (under supervision) made upon a petition by
creditors for a compulsory winding-up, the order was discharged, and the petition
was reheard without fresh advertisement : Be Patent Floor Cloth Co., L. E.
8 Eq. 664. But the parties entitled to be served were served again : S. 0.
The registered name of the company must be accurately stated in the adver-
tisement of a winding-up petition, otherwise the advertisement is invalid : Be City
and County Bank, L. R. 10 Oh. 470.
Service of Petition.
" Eveiy such petition shall, unless presented by the company, be served at the
registered oflSce, if any, of the company, and if no registered oflBce, then at the
principal or last known principal place of business of the company, if any such
can he found, upon any memher, officer, or servant of the company there, or, in
case no such memher, officer, or servant can be found there, then by being left
at such registered office or principal place of business, or by being served on such
member or members of the company as the Court may direct ; and every petition
for the winding-up of a company subject to the supervision of the Court shall
also be served upon the liquidator (if any) appointed for the purpose of winding up
the affairs of the company " : Gen. Ord. Nov. 1862, rule 3.
A petition to wind up a company which has transferred its business and been
dissolved for several years, must be served upon some of the members, officers, or
servants of the company ; and the Court has refused to make an order upon'a peti-
tion served only at the place where the company had carried on business previous
to the dissolution : Be Manchester amd London Life Assurance Association, L. E.
9 Eq. 643.
Where the registered place of business of a company had been demolished,
service on directors at the present place of business, though not registered, was
held sufficient : Be Fortune Copper Mining Co., L. R. 10 Bq. 390.
Where the company's office was closed, and no known place of business could
be found, service was ordered upon the chairman and general manager, the latter
having been a chief promoter : Be National Credit Co., 11 W. R. 161.
Where the company's office was shut up, and there was notice on the premises
that the business was transferred to another company, the Court ordered service of
the petition on five of the directors : Be Unify Assurance Association, 11 W. E. 355.
In a similar case service was ordered upon the solicitor and upon one of the
directors : Be London and Westminster Wine Co., 12 W. R. 6.
Where the company had not been registered under the Companies Acts, service
of the petition at the office of the company was held sufficient without serving
the individual shareholders : Be City of London Financial Association, 15 W. E.
1095.
Where the company had no office or place of business when the petition was
presented, the Court ordered service on nine subscribers to the memorandum of
association, they being the only persons who had acted as directors : Be Inventors'
Association, 13 W. R. 1015 ; 6 N. E. 349.
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THE COMPANIES ACTS, 1862 and 1867. 651
And in a similar case sei-vice was ordered upon the seven subscribers to the
memorandum of association, who appeared to be the only persons connected with
the company : Re Great Owmsymlog Silver Lead Co., 16 W. R. 270.
In the case of a mutual company which had no place of business and no
directors, service was ordered on the secretary and agents of the company, the
latter refusing to say who were the members of the company : Re Thames Mutual
Club Co., 15 L. T. 263; cited in Buckley, .2nd ed. 496.
Where the company had no registered ofHce, service upon the liquidator was
held insufficient, and was ordered upon the late secretary : Re Petroleum Co.,
15 W. E. 29.
A company not registered under the Act may be served with a winding-up
petition in the same mode as. a registered company, and service upon the indivi-
dual shareholders is unnecessary: Re City of London Financial Association,
15 W. R. 1095.
Verification of Petition.
" Every petition for the winding-up of any company by the Court, or subject
to the supervision of the Court, shall be verified by an affidavit referring thereto,
in the form or to the effect set forth in Form No. 2 in the third schedule hereto ;
such affidavit shall be made by the petitioner, or by any one of the petitioners, if
more than one ; or, in case the petition is presented by the company, by some
director, secretary, or other principal officer thereof; and shall be sworn after and
filed within four days after the petition is presented ; and such affidavit shall be
sufficient prima facie evidence of the statement in the petition ": Gen. Ord. Nov.
1862, rule 4.
Under rule 73 the time for filing the affidavit may be enlarged.
An affidavit in support of the petition, sworn before the presentation of the
petition, is ineffectual, and it must be resworn before an order can be made upon
the petition : Re Western Benefit Building Society, 33 Beav. 368.
Where the affidavit was not filed until nine days after the presentation of the
petition, it was still allowed to be used as prima facie evidence of the truth of
the petition : Re Kentish Royal Hotel Co., 13 W. R. 448.
So, too, where the affidavit was not filed until the fifth day : Re London and
Westminster Corporation Store Co., 17 L. T. 559 ; cited in Buckley, 2nd ed. 497.
Where, in consequence of the absence of the petitioner in the country, the
affidavit was not sworn within the four days, the time was extended by the
Court, and a copy of the affidavit was ordered to be forthwith sent to the respon-
dents : Re Patent Screwed Boot Co., 32 Beav, 142.
Where, in consequence of the petitioner being resident in Dantzic, it was im-
possible to file the affidavit within the four days, the time vras enlarged until ten
days : Re Anglo-Danish Steam Co., 15 W. R. 105.
And where the petitioners were resident in one of the colonies, the Court
allowed the petition to be verified by the affidavit of the solicitor : Re Fortune
Copper Mining Co., L. B. 10 Eq. 390.
Although in all cases the affidavit prescribed by the 4th rule is necessary, it is
not therefore in all cases to be deemed sufficient without further evidence : Re St.
BavicCs Gold Mining Co., 14 W. E. 755.
Adveetisembnt of Order to wind up.
" Every order for the winding-up of a company by the Court, or subject to its
supervision, shall within twelve days after the date thereof be advertised by the
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632 STATUTORY JUBISDICTION.
potitioner once in the London Gazette, and shall be served upon such persons (if
any) and in such manner as. the Court may direct ": Gen. Ord. Nov. 1862, rule 6.
Where, from the delay in obtaining the order, the twelve days had expired,
the Court allowed the order to be post-dated : Be Doneaster Permanent Building
Society, 11 W. R. 459 ; Be East Cambrian Gold Mining Co., 12 L. T. 587.
The advertisement of the order to wind up is deemed notice to all the world of
the winding-up : Be General Boiling Stock Co., L. R. 6 Eq. 346.
Costs,
Security for — Companies Act, 1862, s. 69.
" Where a limited company is pit or pursuer in any action, suit, or other
legal proceeding, any judge haying jurisdiction in the matter may, if it appears by
any credible testimony that there is reason to believe that if the deft be successful
in his defence the assets of the company will be insufBcient to pay his costs,
require sufScient security to be given for such costs, and may stay all proceedings
until such security is given :" 25 & 26 Vict. c. 89, s. 69.
One hundred pounds shall be the penal sum in the bond to be given as a
security to answer costs by any pit who is out of the jurisdiction : Cons. Ord.
40, rule 9.
And upon a petition by a shareholder, describing himself as of Edinburgh, for
the usual order to wind up, the petitioner was ordered to give security for £100[:
Be Bank of Australia, 3 De Gr. & Sm. 186.
So, too, where the petitioner — an unsatisfied' judgment creditor — was resident
out of the jurisdiction, a similar amount was fixed : Be Borne Assurance Asso-
ciation, L. B. 12 Eq. 112.
But the security for costs given by a limited company is not confined to £100,
but must be for an amount equal to the probable amount of costs payable : Be
Imperial Bank of China, L. E. 1 Oh. 437.
Where the respondents to a winding-up petition filed affidavits after taking
out a summons for security, the filing of such affidavits was held not to be a
waiver of the security: Be Home Assurance Association, L. R. 12 Eq. 112; see
also Murrows v. Wilson, 12 Beav. 497.
Where the company, is pit in a suit which is merely a cross suit, no security
will be required : Accidental and Marine Insurance Co. v. Mercati, L. R. 3 Eq.
200 ; see also Washoe Mining Co. v. Ferguson, L. E. 2 Eq. 371 ; Moscow Gas
Co. V. International Financial Society, L. E. 7 Oh. 225.
The security is sometimes limited for costs up to a certain stage in the proceed-
ings: Western of Canada Oil Co. v. Walker, L. E. 10 Oh. 628.
Costs — Payment of— Sects. 86, 110.
" Upon hearing the petition the Court may dismiss the same with or without
costs, may adjourn the hearing conditionally or unconditionally, and may make
an interim order, or any other order, that it deems just ": 25 & 26 Vict. c. 89,
s. 86.
Where the Court makes the order for winding up, the general rule as to costs
is that shareholders who appear to support the petition will have one set of costs
between them, and the creditors who appear to support will also have one set of
costs between them : Be Eumber Ironworks Co., L. R. 2 Eq. 15 ; Be Ev/ropean
Co., Ex parte Baylis, L. R. 2 Eq. 521.
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THE COMPANIES ACTS, 1862 and 1867. 653
And where the petition is dismissed, as a general rule creditors opposing the
petition will have one set of costs among them, and shareholders opposing will
also have one set of costs : Se European Co., Ex parte Baylis, L. B. 2 Bq. 521 ;
varying Be Hvmber Ironworks Co., L. R. 2 Eq. 15 ; Be Anglo-Egyptian Navi-
gation Go., L. E. 8 Eq. 660 ; Be European Life Assurance Society, L. R. 10 Bq. 403.
But there is no inflexible rule iipon the subject of costs, and the Court will in
each case be guided by the particular circumstances : Be Anglo-Egyptian Navi-
gation Go., L. E. 8 Bq. 660 ; Be Albion Bank, 15 W. R. 148 ; and where the
petition is dismissed, the Court has, in a proper case, given more than one set of
costs to opposing shareholders : Be Anglo-Egyptian Go., supra.
In the winding-up of a company the petitioner's costs are a first charge upon
the estate, and must be paid in full in priority to the costs of the official liqui-
dator : Be Audley Hall Gotton Spinning Go., L. R. 6 Bq. 245.
But the petitioners are alone entitled to priority, no priority is given to other
persons by mere priority of date in the orders directing payment of their costs :
Be Marlborough aub Go., L. R. 6 Bq. 519.
Where a creditor presented his petition for winding up a company, and his
debt, which was disputed by the company, was subsequently established at law,
he was ield entitled to the costs of withdrawing the petition: Be Bailway
Finance Go., 14 W. R. 785.
And where the Court dismisses the petition, if at the time of the presentation
of it a bona fide case was made out, the dismissal may be without costs : Be Great
Northern Mining Go., 14 W. R. 705.
Where the winding-up order is made on the petition of a shareholder who is
afterwards made a contributory, &c., he is entitled to the costs of the petition and
order though a debtor to the company in respect of calls, without having the
arnount of such calls set off against the costs : Be General Exchange Bank, L. R,
4 Eq. 138.
A creditor who brings his petition to a hearing after an offer to pay his debt
and costs will not be allowed costs incurred after the offer : Be Times Life As-
surance Co., L. R. 9 Bq. 382 ; see also Be Imperial Guardian Life Assurance
Co., L. R. 9 Bq. 447.
A creditor presenting a winding-up petition is entitled to dismiss his petition
with costs notwithstanding the objection of another creditor appearing upon it.
But the costs of the objecting creditor are included in the order : Be Home Assur-
ance Association, L. E. 12 Eq. 59 : Be Hereford and South Wales Waggon Go.,
L. R. 17 Eq. 423.
Where the official liquidator changes his solicitors, and the assets are not
sufficient to pay the whole of his costs, the bills of costs of the successive soli-
citors will, as a general rule, be paid rateably so far as the assets will extend : Be
Avdley Hall Gotton Spinning Go., L. R. 6 Eq. 245.
A liquidator appointed under a resolution to wind up voluntarily is not per-
sonally responsible to the solicitor employed by him in the affairs of the liqui-
dation for any of the costs of such liquidation : Be TruemarHs Estate, L. E.
14 Bq. 278.
Nor the official liquidator in the case of a compulsory winding-up : Be Anglo-
Moravian, (fee, Bailway, L. R. 1 Ch. D. 130.
Where a petition presented by a company to discharge a winding-up order is
dismissed, the costs of the respondents are generally ordered to come out of the
estate, and no order is made as to the costs of the company : Be National Savings
Bank Association, L. ^[^^z§^by Microsoft®
654 STATUTORY JUEISDICTION.
When an application of the official liquidator is refused with costs, the order is
that he do pay the costs, and he must do so whether he gets them or not from the
estate : Ite Paraguassu Steam Tramroad Co., L. E. 9 Ch. 355.
" The Court may, in the event of the assets being insufficient to satisfy the
liabilities, make an order as lo the payment out of the estate of the company of
the costs, charges, and expenses incurred in winding up any company in such
order of priority as the Court thinks just " : sect. 110.
Provisional Liquidatoe.
Appointment of — Appearance — Sect. 85.
" The Court may at any time after the presentation of a petition for winding up
a company, and before the first appointment of liquidators, appoint provisionally
an official liquidator of the estate and effects of the company ": 25 & 26 Vict,
c. 89, s. 85.
" Where it is desired to appoint provisionally an official liquidator, an applica-
tion for that purpose may at any time after the presentation of the petition for
winding up the company be made by summons without advertisement or notice
to any person, unless the judge shall otherwise direct; and such provisional official
liquidator may, if the judge shall think fit, be appointed without security ": Gen.
Ord. Nov. 1862, rule 15.
A provisional liquidator will not, in general, be appointed before the hearing of
a winding-up petition not presented by the company, unless the Court is satisfied
that the petition is unopposed : Be Oilfoden Benefit Building Society, L. R. 3 Ch.
462 ; Be London cmd Hamburgh Bank (Emmerson's Case), L. E. 2 Eq. 231.
Where, the interest of the petitioner is small the Court will hesitate in making
upon his application the appointment of a provisional liquidator : Be Bodcail
Fishing Co., 11 W. R. 84.
A provisional liquidator is not entitled to appear upon the winding-up petition.
He is considered merely as a receiver appointed pendente lite : Be General Inter-
national Co., 13 W. E. 363 ; 5 N. R. 265.
Official Liquidators.
Appointment of — Security — Sects. 92, 141, 150.
" For the purpose of conducting the proceedings in winding up a company, and
assisting the Court therein, there may be appointed a person or persons to be
called an official liquidator or official liquidators ; and the Court having jurisdiction
may appoint such person or persons, either provisionally or otherwise, as it thinks fit,
to the office of official liquidator or official liquidators " : 25 & 26 Vict. c. 89,
s. 92.
" In all cases, if , more persons than one are appointed to the office of official
liquidator, the Court shall declare whether any act hereby required or authorized
tobe done by the official liquidator is to be done by all or any one or more of
such persons. The Court may also determine whether any and what security is
to be given by any official liquidator on his appointment ; if no official liquidator
is appointed, or during any vacancy in such appointment, all the property of the
company shall be deemed to be in the custody of the Court ": Ibid.
"The judge may appoint a person to the office of official liquidator without
previous advertisement or notice to any party, or fix a time and place for the ap-
pointment of an official liquidator, and may appoint or reject any person nominated
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THE COMPANIES ACTS, 1862 and 1867. 655
at such time and place, and appoint any person not so nominated '' : Gen. Oi'd,
Nov. 1862, rule 8.
" When a time and place are fixed for the appointment of an official liquidator,
such time and place shall be advertised in such manner as the judge shall direct,
so that the first or only advertisement shall be published within fourteen days,
and not less than seven days before the day so fixed " : Gen. Ord. 1862, rule 9.
" Every official liquidator shall give security by entering into a recognizance
with two or more sufficient sureties in such sum as the judge may approve ; and
the judge may, if he shall think fit, accept the security of any guarantee society
established by charter or Act of Parliament in England in lieu of the security of
such sureties as aforesaid, or any of them " • Gen. Ord. 1862, rule 10.
" The official liquidator shall be appointed by order, and unless he shall have
given security, a time shall be fixed by such order within which he is to do so ;
and the order shall fix the times or periods at which the official liquidator is to
leave his accounts of his receipts and payments at the judges' chambers, and shall
direct that aU moneys to be received shall be paid into the Bank of England im-
mediately after the receipt thereof, to the account of the official liquidator of the
company, and an account shall be opened there accordingly, and an office copy
of the order shall be lodged at the Bank of England " : Gen. Ord. 1862, rule 11.
" When an official liquidator has given security pursuant to the directions in
the order appointing him, the same shall be certified by the chief clerk as in the
case of a receiver appointed in a cause, subject to giving security " : Gen. Ord.
1862, rule 12.
The official liquidator shall on each occasion of passing his account, and also
whensoever the judge may so require, satisfy the judge that his sureties are living,
and resident in Great Britain, and have not been adjudged bankrupt or become
insolvent, and in default thereof he may be required to enter into fresh security
within such time as shall be directed " • Gen. Ord. 1862, rule 13.
" Every appointment of an official liquidator shall be advertised in such manner
as the judge shall direct immediately after he has been appointed and has given
security " : Gen. Ord. 1862, rule 14.
In the case of a voluntary winding-up, where there is no liquidator, the Court
may, on application of a contributory, appoint a liquidator : 25 & 26 Vict. c. 89,
s. 14:1.
And where an order is made for winding up subject to the supervision of the
Court, the Court may appoint any additional liquidator or liquidators; and
liquidators so appointed shall have the same powers, and be subject to the same
obUgations, as if appointed by the company : 25 & 26 Vict. o. 89, s. 150.
Liquidators — Sesignatiorir—Bemoval — Compensation — Sects. 93,
141, 150.
Any official liquidator may resign or be removed by the Court on due cause
shewn ; and any vacancy in the office of an official liquidator appointed by the
Court shall be filled by the Court : 25 & 26 Vict. c. 89, s. 93.
Where a liquidator has been appointed in the case of a voluntary winding-up,
the Court may on due cause shewn remove any liquidator, and appoint another
liquidator to act in the matter of a voluntary winding-up : 25 & 26 Vict. c. 89,
s. 141.
And where an order has been made for winding up subject to the supervision ot
the Court, the Court may from time to time remove any liquidator appointed by
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656 STATUTORY JUEISDICTION.
the Court, aiid fill up any vacancy occasioned by removal, death, or resignation :
25 & 26 Vict. 0. 89, s. 150.
Liquidators — Compensation — Sect. 93.
" There shall be paid to the official liquidator such salary or remuneration by
■way of percentage or otherwise as the Court may direct ; and if more hquidators
than one are appointed, such remuneration shall be distributed amongst them in
such proportions as the Court directs " : 25 & 26 Vict. c. 89, s. 93.
The remuneration is to include any necessary employment of assistants or
clerks by the official liquidator ; and the salary or remuneration may either be
fixed at the time of appointment : Gen. Ord. Nov. 1862, rule 18.
And the judge may from time to time allow any sum to the official liquidators
on account of such salary or remuneration : Ibid.
For the scale of remuneration and payment, see Eegulation given : L. E. 3 Ch.
App. 64.
Payment by percentage is not imperative on the Court, and where the assets ai-e
large is not admissible ; and the amount of remuneration will not be increased or
diminished in consideration of the liquidator having realized the assets at a
profit or loss : Ee Agra and Masterman's Bank, Oannan's Claim, L. E. 7 Bq.
102.
And the basis of the estimate of amount of remuneration will be the time and
labour employed in the liquidation : S. C.
Liquidators — Powers — Bemoval — Powers to make Galls and Compromise —
Sects. 95, 159, 160.
" The official liquidator shall have power, with the sanction of the Court, to do
the following things : —
To bring or defend any action, suit, or prosecution, or other legal proceeding
civil or criminal, in the name and on behalf of the company :
To carry on the business of the company so far as may be necessary for the
beneficial winding up of the same :
To sell the real and personal and heritable and movable property, effects, and
things in action of the company by public auction or private contract, with
power to transfer the whole thereof to any person or company, or to sell the
same in parcels :
To do all acts and to execute in the name and on behalf of the company all
deeds, receipts, and other documents, and for that purpose to use when
necessary the company's seal :
To prove, rank, claim, and draw a dividend in the matter of the bankruptcy,
or insolvency, or sequestration of any contributory for any balance against
the estate of such contributory, and to take and receive dividends in respect
of such balance, in the matter of bankruptcy, or insolvency, or sequestra-
tion as a separate debt due from such bankrupt or insolvent, and rateably
with the other separate creditors :
To draw, accept, make, and indorse any bill of exchange or promissory note
in the name and on behalf of the company, also to raise upon the security
of the assets of the company from time to time any requisite sum or sums
of money ; and the drawing, accepting, making, or indorsing of every such
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THE COMPANIES ACTS, 1862 and 1867. 657
bill of exchange or promissory note as aforesaid on behalf of the company-
shall have the same effect with respect to the liability of such company as
if such bill or note had been drawn, accepted, made, or indorsed by or on
behalf of such company in the course of carrying on the business thereof :
To take out if necessary, in his ofScial name, letters of administration to any
deceased contributory, and to do in his official name any other act that
may be necessary for obtaining payment of any moiieys due from a con-
tributory or from his estate, and which acts cannot be conveniently done
in the name of the company; and in all cases where he takes out letters of
administration, or otherwise uses his official name for obtaining payment
of any moneys due from a contributory, such moneys shall, for the pur-
pose of enabling him to take out such letters or recover such moneys, be
deemed to be due to the official liquidator himself:
To do and execute all such other things as may be necessary for winding up
the affairs of the company and distributing its assets " : 25 & 26 Vict, c. 89,
s. 95.
The sanction of the judge to the drawing, accepting, making, and indorsing of
any bill of exchange or promissory note by any official liquidator shall be testified
by a memorandum on such bill of exchange or promissory note signed by the chief
clerk of the judge : Gen. Ord. 1862, rule 48.
" The liquidators may, with the sanction of the Court, where the company is
being wound up by the Court, or subject to the supervision of the Court, and
with the sanction of an extraordinary resolution of the company, whare the com-
pany is being wound up altogether voluntarily, pay any classes of creditors in
full, or make such compromise or other arrangement as the liquidators may deem
expedient with creditors, or persons claiming to be creditors, or persons having, or
alleging themselves to have, any claim, present or future, certain or contingent,
ascertained, or sounding only in damages against the company, or whereby the
company may be rendered liable " : 25 & 26 Vict. c. 89, s. 159.
The Court will not, even where the winding-up is purely voluntary, order the
compromise to be carried into effect without considering its propriety. But the sanc-
tion of a general meeting is an important element in judging of its propriety :
Re Lama Ooal Co., L. E. 2 Ch. 692.
The sanction of a general meeting is sufficient to throw on the parties objecting
■' to the compromise the onus of shewing that it is unreasonable : S. C.
" The liquidators may, with the consent of the Court, where the company is
being wound up by the Court, or subject to the supervision of the Court, and
with the sanction of an extraordinary resolution of the company where the com-
pany is being wound up altogether voluntarily, compromise all calls, and liabilities
to calls, debts, and liabilities capable of resulting in debts, and all claims, whether
present or future, certain or contingent, ascertained, or sounding only in damages,
subsisting, or supposed to subsist, between the company and any contributory, or
alleged contributory, or other debtor or person apprehending liability to the com-
pany, and all questions in any way relating to or affecting the assets of the company,
or the winding-up of the company, upon the receipt of such sums, payable at such
times, and generally upon such terms as may be agreed upon, with power for the
liquidators to take any security for the discharge of such debts or liabilities, and
to give complete discharges in respect of all or any such calls, debts, or liabihties " :
sect. 160.
The Court has no power under the 159th and 160th sections to sanction an
arrangement by which a minority of creditors or contributories are bound to
2 u
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658 STATUTORY JURISDICTION.
accept a compromise against their will r Be Albert lAfe Assurance Co., L. R.
6 Ch. 381.
There is nothing in the Act which enables one creditor to bind another creditor
to accept a compromise, or which enables one debtor to bind another debtor with
respect to paying a composition : S. C. ; but see Se Agra and Masterman's Bank,
15 W. R. 554 ; Bank of Hindustan, China, &c., L. R. 2 P. 0. 489 ; Se Com-
mercial Bank of India, L. R. 8 Eq. 241 ; see also Joint Stock Companies Arrange-
ment Act, 1870.
The Court has no jurisdiction to order the liquidator in a winding-up to consent
to a compromise with a contributory. The compromise, under the 160th section,
can only be made with the consent both of the liquidator and of the Court :
Pearson's Case, L. R. 7 Ch. 309.
Where the sanction of the judge was necessary before a compromise could be
made, the Court has jurisdiction to fet aside the compromise made if obtained by
misrepresentation : Ex parte Clarke, 14 W. R. 856.
Every application for the sanction of the judge to a compromise with any con-
tributory or other person indebted to the company shall be supported by the
afBdavit of the official liquidator that he has investigated the affairs of such
contributory or person, and stating his belief that the proposed compromise will
be beneficial to the company, and his reasons for such belief ; and the sanction of
the judge thereto shall be testified by a memorandum signed by the chief clerk of
the judge on the agreement of compromise, unless any party shall desue to appeal
from the decision, of the judge, in which case an order shall be drawn up for that
purpose : Gen. Ord. 1862, rule 49.
The direction or sanction of the jud^e for any other proceeding or act to be taken
or done by the official liquidator shall be obtained upon summons, and an order ,
shall be drawn up thereon, unless the judge shall otherwise direct : Gen. Ord. 1862,
rule 50.
Liquidators — Voluntary Winding-up — Gompensaiion.
Where any company is proposed to be or is in the course of being wound up
altogether voluntarily, and the whole or a portion of its business or property is
proposed to be transferred or sold to another company, the liquidators of the first-
mentioned company may, with the sanction of a special resolution, receive in
compensation shares, policies, or other like interests in such other company, &e^,
or may participate in profits, &c. : see sect. 161.
This section does not relate to a purely voluntary winding-up only, but includes
a voluntary winding-up under supervision of the Court : Be Imperial Mercantile
Credit Association, L. R. 12 Bq. 505.
An arrangement by which a company selling to another company upon such
terms as impose liabilities upon the shareholders of the company selling, is not
within the meaning of the section : Clinch v. Financial Corporation, L. R. 5 Eq.
450 ; L. R. 4 Ch. 117. See also Imperial Bank of China, L. R. 6 Eq. 91 ; L. R.
1 Ch. 399.
The price to be determined for the purchase of the interest of a dissentient
member may be determined by agreement ; but if the parties dispute about the
same, such dispute shall be settled by arbitration, and, for the purposes of such
arbitration the provisions of the Companies Clauses Consolidation Act, 1845, with
respect to the settlement of disputes by arbitration, shall be incorporated with this
Act: sect. 161.
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THE COMPANIES ACTS, 1862 and 1867. 659
Rectification of Eegister.
Companies Act, 1862, «. 35.
Let the register of the memhers of the above-named — Oompany
(Limited) be rectified by striking out the name of — as a member of
the said — company in respect of his shares numbered, &c., upon the
said register. Let notice of such rectification be given to the Registrar
of Joint Stock Companies. Directions (if any) for payment of costs.
Bectification of Segister — Inquiry as to Damages.
Let the register of the members of the New Quebrada Company
(Limited) be rectified by striking out the name of E. P. as a member
of the said company in respect of his shares numbered — upon the said
register. Let a notice of such rectification be given to the Registrar
of Joint Stock Companies. Let the said company pay to the said E. P.
his costs of this application, to be taxed, &o. Let an inquiry be made
•what damages the said B. P. has incurred by reason of his name
having been put upon such register beyond his costs hereinbefore
directed to be taxed. Let the said company pay to the said E. P.
what shall be certified to be due in respect of such damages. Me New
Quebrada Co. (Idmited), 15 W. E. 955.
Segister recHfied—Iietum of Deposit waived.
J. M. by his counsel waiving any claim to a return of the deposit
paid by him in respect of his fifty A shares numbered respectively
1424 to 1473 inclusive in the Minerva Banking Assurance Corporation
(Limited), Let the register of the members of the said corporation be
rectified by striking out from the register of members of the said cor-
poration the name of the said Joseph Manley in respect of such shares.
Let notice of such rectification be given to the Registrar of Joint Stock
Companies. — Affidavit to be taken off the file. — No costs. Be Minerva
Banking Corporation (V.-C. B.), Feb. 8, 1872.
Contributory placed on the List — Costs — Set-off.
Let the name of J. W. W. be placed on the list of contributories of
the said company in respect of — paid-up shares and of — unpaid
shares. Let the costs of the said J. W. W. be taxed by the taxing
master, and Let such costs when taxed be set off against the liability
of the said J. W. ~W. in respect of the said thirty unpaid shares in the
said company. Let the said ofScial liquidator have his costs out of
the assets of the said company. Be Matlock Old Baths Co. (V.-C. B.),
July 28, 1873.
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660 STATUTORY JURISDICTION.
Call Order discharged — Gall substituted — Oosis.
Let the order dated the 1st of July, 1873 [call order] be discharged.
Let [hut -without prejudice to any question] a call of £12 per share be
made on all the contributories of the above-named International Life
Assurance Society. Let each such contributory on or before the 28th
of August, 1873, pay into Court to the account of the official liquidator
of the International Life Assurance Society the amount which will be
due from him or her in respect of such call. Let the costs of the
applicant [shareholders] and of the Prudential Assurance Company of
this application be taxed by the taxing master, and be paid by the
official liquidator of the International Life Society out of the assets of
the said society. Let the costs of the said official liquidator of the
said society of this application be taxed by the taxing master as be-
tween solicitor and client, and be allowed out of the assets of the said
society. Be International Life Assurance Society ( V.-C. M.), July 28, 1873.
Eectipication of Eegistee — Sect. 35.
" If the name of any person is without sufficient cause entered in or omitted
from the register of memhers of any company under this Act, or if default is
made or unnecessary delay takes place in entering on the register the fact of
any person having ceased to he a member of the company, the person or member
aggrieved, or any member of the company, or the company itself, may, as respects
companies registered in England or Ireland, by motion in any of Her Majesty's
Superior Courts of Law or Equity, or by application to a judge sitting in cham-
bers, or to the Vice- Warden of the Stannaries in the case of companies subject to
his- jurisdiction, and as respects companies registered in Scotland by summary
petition to the Court of Session, or in such other manner as the said Courts may
direct, apply for an order of the Court that the register may be rectified, and the
Court may either refuse such application, with or without costs to be paid by the
applicant, or it may, if satisfied of the justice of the case, make an order for the
rectification of the register, and may direct the company to pay all the costs of
such motion, application, or petition, and any damages the party i^grieved may
have sustained": 25 & 26 Vict. c. 89, s. 35.
" The Court may in any proceeding under this section decide on any question
relating to the title of any person who is a party to such proceeding to have his
name entered in or omitted from the register, whether such question arises
between two or more members or alleged members, or between any members or
alleged members and the company, and generally the Court may in such pro-
ceeding decide any question that it may be necessary or expedient to decide for
the rectification of the register ; provided that the Court, if a Court df Common
Law, may direct an issue to be tried, in which any question of law may be raised,
and a writ of error or appeal, in the manner directed by the Common Law Pro-
cedure Act, 1854, shall lie": Ibid.
" Wherever any order has been made rectifying the register, in case of a com-
pany hereby required to send a list of its members to the registrar, the Court
shall by its order direct that due notice of such rectification be given to the
registrar": 25 & 26 Vict; c. 89, s. 36.
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THE COMPANIES ACTS, 1862 and 1867. 661
, For cases in which the 35th eection has been made use of for determining the
equity between alleged shareholders and the company : Higgs' Case, 2 H. & M.
657; Martin's Case, Ibid. 669; Los' Case, 13 W. E. 883; Ship's Case, 2 De J,
& Sm. 544 ; Stewart's Case, L. R. 1 Ch. 574.
And where the memorandum of association differed widely from the prospectus
the register of members was rectified upon the application of the alleged share-
holder: Ship's Case, 2 De J. & Sm. 544 ; Stewart's Case, L. R. 1 Ch. 574.
It has been held to be in the discretion of the Court under this section, in
questions arising between vendor and purchaser, to entertain an application of
the purchaser to have his name entered on the list, or of directing the proceedings
to stand over until the question has been tried between the parties : Stewart's
Case, L, R. 1 Ch. 574.
But the jurisdiction under this section was subsequently held to be of a more
limited nature : Ward and Ennry's Case, 'per Cairns, L.J. {diss. Turner, L.J.),
li. E. 2 Ch. 431.
And where the circumstances of the case are complicated, the Court will not
exercise its summary jurisdiction under this section : Stewards Case, L. E. 1 Ch.
574 ; Ward and Henry's Case, L. R. 2 Ch. 431, supra ; Ex parte Parker, L. R.
2 Ch. 685; Ex parte Kintrea, L. R. 5 Ch. 95, 99; Simpson's Case, L. R. 9 Eq.
91 ; Beese Biver Co. {Smith's Case), L. R. 2 Ch. 604, 609 ; Dowries v. Ship, L. E.
3 H. L. 343 ; Cakes v. Tarquamd, L. E. 2 H. L. 325, 344.
The Court has no power to make an order under the 35th section where the
title of the appellant is only equitable : Be Sargent, L. E. 17 Eq. 273.
For cases where the transfer of shares had been made to transferees for the
purpose of avoiding liability, and applications made to the Court to rectify the
register accordingly under this section : see Esc parte Parker, L. R. 2 Ch. 685 ; Ex
parte Kintrea, L. R. 5 Ch. 95.
The Court will not rectify the register upon the application of the company
when the state of the register is owing to the negligence of the company:
SicheU's Case, L. K. 3 Ch, 119; Parsons' Case, L. R. 8 Eq. 656.
If it can be shewn that a material representation which is not true is con-
tained in the prospectus, or in any document forming the foundation of the
contract between the company and the shareholder, and the shareholder comes
within a reasonable time and under proper circumstances to be released from his
contract, he is entitled to relief: Beese Biver Silver Mining Co. {Smith's Case),
L. E. 2 Ch. 604, 609, per Turner, L.J. ; Central Bailway Company of Vene-
zuela v. Kisch, L. R. 2 H. L. 99.
As to what constitutes such a misrepresentation or such a discrepancy between
the prospectus and memorandum as entitles the shareholder to be relieved from
his contract: see Buckley, 2nd ed. 98; Denton v. Macneil, L. R. 2 Eq. 352;
New Brunswick Co. v. Conyieare, 9 H. L. C. 711 ; Central BaUioay Company
of Venezuela v. Kisch, L. R. 2 H. L. 99, 11 3 ; Boss v. Estates Investment Co., L. R.
3 Eq. 122, 136 ; New Brunswick and Canada By. Co. v. Muggeredge, 1 Dr. &
Sm. 363, 381 ; Henderson v. Lacon, L. R. 5 Eq. 249, 262 ; Downes v. Smith,
L. R. 3 H. L. 343, 354 ; Ex parte Briggs, L. R. 1 Eq. 483, 486 ; Hallows v.
Fernie, L. R. 3 Ch. 467 ; Mumter's Case, 14 W. R. 957 ; Smith's Case, L. R. 2 Ch.
604 ; Beese Biver Silver Mining Co. v. Smith, L. E. 2 Ch. 604.
As to the time within which the shareholder must apply for relief, and what
constitutes "reasonable" time: PeeTs Case, L. E. 2 Ch. 674, 684; Calces y. Tur-
quaiid, L. R. 2 H. L. 325, 352 ; Hallows v. Fernie, L. E. 3 Ch. 467, 477 ;
Bailway Company of Venezuela v. Kisch, L. E. 2 H. L. 99, 125 ; Ship's Case,
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662 STATUTOBY JUEISDICTION.
2 De J, & Sm. 544 ; L. B. 3 H. L 343 ; Stewart's Case, L. B. 1 Ch. 574 ; Weh-
ster'a Case, L. E. 2 Eq. 741 ; Lawrence's Case, L. E. 2 Ch. 412 ; Kincaid's. Case,
L. E. 2 Cli. 412 ; Wilkinson's .Case, L. E. 2 Ch. 536 ; Smith's Case, L. B. 2 Oh.
604 ; L. E. 4 H. L. 64.
And aoquiesceuce after misrepresentations have been discovered is in many
cases fatal to relief being granted : Ex pa/rte Briggs, L. E. 1 Eq. 483 ; Scholey v.
Central Railway of Venezuela, L. E. 9 Bq. 266; Kent v. Freehold Land Co.,
L. E. 4 Eq. 58». 600.
If a man has become a shareholder in such a way as that the contract is void-
able at his optiou, bat not at the company's, then if he has not avoided the
contract, or done what is tantamount to avoiding it before the oommenciiment of
the winding-up, he must be held liable as a contributory : Marshall v. Glamorgan
Iron Co., L. E. 7 Eq. 129, 137, per Giffard, V.C. ; see also Oakts v. Twrquand,
L. E. 2 H. L. 32o; Beese River Silver Mining Co. v. Smith, L. E. 2 Ch. 604;
L. E. 4 H. L. 64.
But there is no contract whatever between a creditor of the company and a
shareholder in the company. The contract is between the creditor and the com-
pany. And if an individual has allowed his name to be put on the list of share-
holders by a contract which as between him and the company is valid, he will
not be allowed to withdraw from it, as regards the payment of calls, by any
collateral agreement limiting his liability as between himself and the company :
Be Beese Siher Mining Company {Smith's Case), L. E. 2 Ch. 604, per Cairns, L.J.
But where the question whether the individual ever did assent by a contract
valid in law to have his name put on the list of shai'ebclders, a risk intervenes,
which the creditor must take : S. 0.
Where .shares had been issued under a contract not duly registered under the
25th section of the Companies Act, 1867, the Court has by consent ordered the
register to be rectified by striking out the names of the holders, and that the
shares should be reissued after the registration of the contract: Be Benton Colliery
Co,, L. B. 18 Eq. 16.
And the directors of a company have been held empowered to rectify a similar
mistake, common to the directors and the allottee, without applying to the Court :
Be Poole Firebrick Co. {Hartley's Case), L. B. 18 Eq. 542 ; L. E. 10 Ch. 157.
A contract with a trustee for a company, adopted by the company, is within
the meaning of the 25th section of the Companies Act, 1867 : S. C.
POHM OF EeCTIFICATION.
Where the register is to be rectified by the removal of a name, the name should
be struck through with pen and ink, adding, " By order of the Court of — , dated,
&c., this name has been erased" : Iron Ship Building Co., 34 Beav. 597; see also
Fx parte Webb, 8 L. T. 478, cited in Buckley, .2nd ed. 126.
Liability of Members.
Glasses A. and B. — CaM, — Sect. 38.
The Court being of opinion that each contribntory of Class B. is
liable to contribute to the assets of the company (but so as no call be
made in excess of the amount now unpaid on the shares held by him)
rateably with the other B. contributories to the extent of the debts
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THE COMPAlJlES ACTS, 1862 and 1867. 663
which were owing hy the company when he transferred his shares,
and which remained owing at the commencement of the winding-up,
and now remaining owing after the application of the contributions
made hy the contributories of Class A. since the commencement of
the winding-up and of the other assets of the company : Declare that
for the payment of each debt a call must be made on those contribu-
tories who transferred their shares after it was contracted ; and that
the sums contributed by the B. contributories respectively be applied
exclusively in payment of the debts which were incurred before the
dates of the respective transfers and remaining unpaid at the com-
mencement of the winding-up. Morris' Case, L. E. 7 Oh. 200.
Same Case on Sehearing.
The Court being of opinion that in a winding-up the funds contri-
buted by the B. list of shareholders become part of the general assets
of the company, and are not to be applied preferentially or exclusively
to the payment of those debts which were incurred before the B.
shareholders transferred their shares in the said company. Let so
much of the said order of 3rd Noveihber, 1871, as directs that the
sums contributed by the B. contributories respectively be applied
exclusively in payment of the debts which were incurred before the
dates of their respective transfers, and remained unpaid at the com-
mencement of the winding-up, be discharged. Let the funds contri-
buted by the said B. shareholders be applied in the winding-up of the
said bank as general assets of the said bank. Let the costs of the
liquidator and of the said John Morris and M. H. Clayton of this
application and consequent thereon be taxed, &c., and be paid out of
the assets of the said Oriental Commercial Bank, Limited. Morris'
Case, L. E, 8 Oh. 800.
Liability of Members — Sect. 38.
" In the event of a company formed under this Act being wound up every
present and past member of such company shall be liable to contribute to the
assets of the company to an amount sufficient for payment of the debts and
liabilities of the company, and the costs, charges, and expenses of the winding-up,
and for the payment of such sums as may be required for the adjustment of the
rights of the contributories amon|st themselves, with the qualifications following;
(that is to say,) —
(l.),No past member shall be Uable to contribute to the assets of the com-
pany if he has ceased to be a member for a period of one year or
upwards prior to the commencement of the winding-up : ;
(2.) No past member shall be liable to contribute in respect of any debt or
liability of the company contracted after the time at which he ceased
to be a member :
C3 ) No past member shall be liable to contribute to the assets of the compa,ny
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66i STATUTORY JURISDICTION.
unless it appear to the Court that the existing members are unable to
satisfy the contributions required to be made by them in pursuance of
this Act :
(4.) In the case of a company limited by shares no contributions shall be
required from any member exceeding the amount, if any, unpaid on
his shares in respect of which he is liable as a present or past member :
(5.) In the case of a company limited by guarantee no contribution shall be
required from any member exceeding the amount of the undertaking
entered into on his behalf by the memorandum of association :
(6.) Nothing in this Act contained shall invalidate any provision contained
in any policy of insurance or other contract whereby the liability of
individual members upon any such policy or contract is restricted, or
whereby the funds of the company are alone made liable in respect of
such policy or contract :
(7.) No sum due to any member of a company in his character of a member,
by way of dividends, profits, or otherwise, shall be deemed to be a debt
of the company, payable to such member in a case of competition
between himself and any other creditor not being a member of the
company ; but any such sum may be taken into account for the pur-
pose of final adjustment of the rights of the contributories amongst
themselves ": 25 & 26 Vict. c. 89, s. 38.
In settling the list of contributories under sect. 38 the A. list of present
members is first made out ; and, secondly (if necessary), the B. list of those who
have ceased to be members within a year prior to the winding-up order : WrigMs
Case, L. R. 12 Bq. 335, n., 345, n. ; McEwm's Case, L. R. 6 Ch. 582, 586 ; Need-
liam's Case, L. R. 4 Bq. 335.
If after the B. list has been settled and a call made it should ultimately appear
that the contributions of the A. contributories are sufficient to pay the debts, the
past members will be exonerated, and will be entitled to the return of any money
they have paid : Belhert v. Banner, L. R. 5 H. L. 28.
The B. list may be settled irrespective of the question whether the present
holders of the shares will ultimately pay -.Andrews' Case, L. R. 4 Eq. 458 ; L. R.
3 Ch. 161 ; Helhert v. Banner, L. R. 5 H. L. 28.
But in practice the B. list is not settled until it has been shewn that the present
members are unable to satisfy the debts : McEwen's Case, L. R. 6 Ch. 582,
586.
The liability of a past member of a company under sect. 38 is a liability to con-
tribute to the general assets of the company in the event of its being wound up,
and not a liability to contribute to a fund appropriated (so far as creditors are con-
cerned) for the payment of any particular debts of the company ; Webb v. Whiffin,
L. R. 5 H. L. 711.
The rights of creditors of the company, at whatever time their debts may have
been contracted, are as against the company and' its assets (including all contribu-
tions made to its assets by past members) similar and equal. The creditors are
not divisible into classes with different rights against different funds : S. C.
The liability of past members to contribute in respect of debts contracted before
they ceased to be members cannot exceed the amount of the " residuum " of those
debts after writing off from them the full amount of the dividends paid out of the
property in hand and the contributions of present members : Brett's Case, L. B.
6 Ch. 800 ; Morris and Brett's Case, L. R. 8 Ch. 801.
Where the entire claim to this residuum, and to all future dividends thereon,
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THE COMPANIES ACTS, 1862 and 1867. 665
has been in substance and effect released and discharged to the company, no call
in respect of such debt can properly be made : Brett's Case, L. R. 6 Ch. 800 ;
L. E. 8 Ch. 800.
If after the B. list is settled and a call made the contributions of the A. contri-
butories are sufficient to pay the debts, the past members will be entitled to the
return of their money paid : Helhert v. Banner, L. R. 5 H. L. 28.
Unlimited Liability of Directors.
Companies Act, 1867, es. 4 — 8.
" Where a company is formed as a limited company under the principal Act,
the liability of the directors or managers of such company, or the managing direc-
tor, may, if so provided by the memorandum of association, be unlimited " : 30 &
31 Vict. c. 131, s. 4.
" The following modifications shall be made in the 38th section of the principal
Act with respect to the contributions to be required in the event of the winding-
up of a limited company under the principal Act, from any director or manager
whose liability is in pursuance of this Act unlimited : —
(1.) Subject to the provisions hereinafter contained, any such director or manager,
whether past or present, shall in addition to his liability (if any) to con-
tribute as an ordinary member, be liable to contribute as if he were at
the date of the commencement of such winding-up a member of an
unlimited company :
(2.) No contribution required from any past director or manager who has ceased
to hold such office for a period of one year or upwards prior to the com-
mencement of the winding-up shall exceed the amount (if any) which
he is liable to contribute as an ordinary member of the company :
(3.) No contribution from any past director or manager in respect of any debt
or liability of the company contracted after the time at which he ceased
to hold such office shall exceed the amount (if any) which he is liable
to contribute as an ordinary member of the company :
(4.) Subject to the provisions contained in the regulations of the company, no
contribution required from any director or manager shall exceed the
amount (if any) which he is liable to contribute as an ordinary member,
unless the Court deems it necessary to require such contribution in order
to satisfy the debts and liabilities of the company, and the costs, charges,
and expenses of the winding-up"; 30 & 31 Vict. c. 131, s. 5.
" In the event of the winding-up of any hmited company, the Court, if it
think fit, may mate to any director or manager of such company whose liability
is unlimited the same allowance by way of set-off as under the 101st section of
the principal Act it may make to a contributory where the company is not
limited": 30 & 31 Vict. c. 131, s. 6.
In any limited company in which the liability of a director or manager is
unlimited notice is to be given to the director or manager on his election that his
liability will be unlimited : sect. 7.
And an existing limited company may, by special resolution, make the liability
of directors unlimited : sect. 8.
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666 STATUTORY .rUEISDIOTION.
Shares — Payment of Cash.
Companies Act, 1867, s. 25.
" Every share in any company shall be deemed and taken to have been issued
and to be held subject to the payment of the v^hole amount thereof in cash, un-
less the same shall have been otherwise determined by a contract duly made in
writing, and filed with the registrar of joint stock companies at or before the issue
of such shares '' : 30 & 31 Vict. c. 131, s. 25. For cases under this section, see
FothergiU's Cafe, L. E. 8 Ch. 270 ; Spargo's Case, L. E. 8 Ch. 407 ; Maynard'a
Case, L. E. 9 Oh. 60; Ferrao's Case, L. E. 9 Ch. 355.
" CONTEIBUTOEY " — DEFINITION OF — DeATH — BANKRUPTCY — MabEIAGE.
Companies Act, 1862, sects. 75 — 8.
"The term 'contributory ' shall mean every person liable to contribute to the
assets of a company under this Act in the event of the same being wound up.
It shall also, in all proceedings for determining, the persons who are to be deemed
contributories, and in all proceedings prior to the final determination of such
persons, include any person alleged to be a contributory " : 25 & 26 Vict. c. 89,
s. 74.
" The liability of any person to contribute to the assets of a company under
this Act in the event of the same being wound up shall be deemed to create a
debt (in England and Ireland of the nature of specialty) accruing due from such
person at the time when his liability commenced, but payable at the time or
respective times when calls are made, as hereinafter mentioned, for enforcing such
liability ; and it Shall be lawful, in the case of any contributory, to prove against
his estate the estimated value of his liability to future calls, as well as calls
already made :" 25 & 26 Vict. c. 89, s. 75.
The 75th section is, by virtue of sect. 199, applicable to unregistered com-
panies; and the liability of a shareholder in a company not registered, but wound
up under the Act, is of the nature of a specialty debt. The liquidator of such
a company is entitled to prove against the estate of a deceased contributory for
the estimated value of such liability, although no call has been actually made in
the winding-up, and to have a proportionate share of the fund set apart to meet
it : -ffe Muggeridge, L. K. 10 Eq. 443.
For cases under sect. 75 see Buckley, 2nd ed. 170.
" If any contributory dies before or after he has been placed on the list of con-
tributories, his personal representatives, heirs, and devisees shall be liable in a
due course of administration to contribute to the assets of the company in dis-
charge of the liability of such deceased contributory ; and such personal repre-
sentatives, heirs, and devisees shall be deemed to be contributories accordingly":
25 & 26 Vict. c. 89, s. 76.
The liability of the contributory may be enforced so long as the shares are left
standing in the decQased member's name, or in that of his executors, as execu-
tors merely, both against his personal estate and against his real estate in the
hands of devisees : Turquand v. Kirhy, L. E. 4 Eq. 123 ; Harrier's Devisees' Case,
2 Do G-. M. & G. 366 ; cited in Buckley, 2nd ed. 175.
" if any contributory becomes bankrupt, either before or after he has been
placed on the list of contributories, his assignees shall be deemed to represent such
bankrupt for all the -purposes of the winding-up, and shall be deemed to be con-
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THE COMPANIES ACTS, 1862 and 1867. 66T
tributories accordingly, and may be called upon to admit to proof against the
estate of audi bankrupt, or otherwise to allow to be paid out of his assets in a.
due course of law, any moneys due from such bankrupt in respect of his liability
to contribute to the assets of the company being wound up": 25 & 26 Vict,
c. 89, s. 77.
" And for the purpose of this section any person who may have taken tho
benefit of any Act for the relief of insolvent debtors before the 11th of October'
1861, shall he deemed to have become bankrupt": Ibid.
" If any female contributory marries, either before or after she has been placed
on the list of contributories, her husband shall during the continuance of the
marriage be liable to contribute to the assets of the company the same sum as
she would have been liable to contribute if she had not married, and he shall be
deemed to be a contributory accordingly " : 25 & 26 Vict: c. 89, s. 78.
Where a married woman having separate estate contracted' to take shares' in
her own name in a banking company formed under 7 Geo. 4, c. 46, the contract;
having been entered into on the credit of her separate estate, she was placed on
the list of contributories in her own right : Mrs. Mathewman's Case, L. R. 3 Bq.
781, cited in Buckley, 2nd ed. 179.
Eesteaining Legal Peoceedings.
Execution— Distress, &c. — Companies Act, 1862, sects. 85, 87, 89, 163, 201.
Upon motion, &c., by — , the petitioner named in a petition, &c.,
and — , the petitioners by their counsel undertaking to abide by any
order this Court may think fit to make as to damages in case the Court
shall hereafter be of opinion that J. F., E. M., and the sheriff of
Durham have sustained any by reason of this order •which the said peti-
tioners ought to pay, &c., Let the said J. Y. and E. M. be restrained
until the hearing of the said petition or further order from continuing
any further or other proceedings under the judgment and execution
obtained by them against the above-mentioned company. And Let
the said J. F. and E. M., and the sheriff of Durham, be restrained
from selling any of the goods of the said company which have been
seized under the said execution until after the — day of — , or further
order. Let the rest of the motion stand over untU the — day of — .
Be Basiow, L. E. 4 Eq. 681.
Sheriff to give up Possession to Liquidator — Property to he sold in the
Winding-up, &g.
Let the sheriff give up to the official liquidator of the said company
any property in the possession of the said sheriff under or by virtue
of any execution on a judgment against the said company at the suit
of the said [tiaming execution creditors'].
Let the said property be sold in the winding-up of the said com-
pany ; and Let separate accounts be kept and taken of the proceeds of
the property seized by the sheiiff under the said writs. Let the said
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668 STATUTORY JURISDICTION,
several execution creditors have the same priority against the proceeds
of the property seized hy the sheriff, when sold, as they would have
had if it had been sold hy the sheriff without prejudice to their right
as creditors in the winding-up. Let the said creditors he at liberty
to apply in chambers in the winding-up if the sale he unreasonably
delayed. Let the costs of all parties of the application and the
charges of the sheriff properly payable, including his poundage, be
taxed and paid out of the assets of the company. Be Plas-yn-Mhoitys
Goal Company, L. E. 4 Eq. 689.
Liquidator to sell the Property seized.
The Court being of opinion that the Merchant Banking Company
of London, Limited, the execution creditors of the HiU Pottery Com-
pany, Limited, are entitled to a first charge for their debt and their
costs both at law and in equity upon the property of the said HUl
Pottery Company, Limited, the subject of the execution. Let the
provisional official liquidator sell the said property the subject of the
said execution with the approbation of the judge, and receive the
purchase-money to arise therefrom, and within seven days after the
receipt thereof pay the same into Court to the credit of the provi-
sional official liquidator of the Hill Pottery Company, Limited,
" Proceeds of sale of property taken in execution by the Merchant
Banking Company of London, Limited." And the money so to be
paid into Court is not to be paid out, or otherwise disposed of, with-
out notice to the said Merchant Banking Company of London, Limited.
Let the costs of K. T. A. (the sheriff of the county of Stafford) of this
application be taxed by the taxing master, and paid out of the assets
of the said company. Be JBMl Pottery Co., L. E. 1 Eq. 649.
Voluntary Winding-up — Stay of Proceedings — Costs.
Let an injunction be awarded against J. T., of Bristol, &c., to re-
strain him, his solicitors and agents, until further order, from further
prosecuting the action commenced by him in Her Majesty's Court of
Exchequer against the said company, and from prosecuting any other
action at law, and from taking any other proceedings at law against
the said company for recovery of the sum of £ — , alleged to be due
to him from the said company. Liberty to apply as there may be
occasion. Let the said J. T., at his own expense, have access at all
seasonable times, upon giving reasonable notice, to the proceedings
under the winding-up of the said company. Let the costs of the said
J. T. of the said action up to the time when notice of injunction
granted against J. C. was given to the said J. T. be added to his
debt. Let the costs of the liquidator of this application ,and conse-
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THE COMPANIES ACTS, 1862 and 1867. 669
quent thereon be paid out of the assets of the said company. Be Tlie
Keynsliam Blue Idas Go., 33 Beav. 123.
Kestraining Legal Proceedings.
" The Court may at any time after the presentation of a petition for winding
up a company under this Act, and before making an order for winding up the
company, upon the application of the company, restrain further proceedings in
any action, suit, or proceeding against the said company, upon such terms as
the Court thinks fit" : 25 & 26 Vict. c. 89, s. 85.
" Where an order has teen made for winding up a company under this Act, no
suit, action, or other proceeding shall be proceeded with or commenced against
the company except with the leave of the Court, and subject to such terms as the
Court may impose" : 25 & 26 Vict. c. 89, s. 87.
" The Court may at any time after an order has been made for winding up a
company, upon the application by motion of any creditor or contributory of the
company, and upon proof to the satisfaction of the Court that all proceedings in
relation to such winding-up ought to be stayed, make an order staying the samp,
either altogether or for a limited time, on such terms and subject to such condi-
tions as it deems fit " : 25 & 26 Vict. e. 89, s. 89.
"A petition praying wholly or in part that a voluntary winding-up should
contimiei but subject to the supervision of the Court, is, for the purpose of giving
jurisdiction to the Court over suits and actions, to be deemed a jpetition for wind-
ing up the company by the Court " : 25 & 26 Vict. c. 89, s. 148.
And where an order is made for winding up subject to the supervision of the
Court, the order is, for the purpose of staying actions, suits, and other proceed-
ings, to be deemed an order of the Court for winding up by the Court : 25 & 26
Vict. c. 89, s. 148.
" Where any company is being wound up by the Court, or subject to the
supervision of the Court, any attachment, sequestration, distress, or execution put
in force against the estate or effects of the company after the commencement of
the winding-up shall be void to all intents " : 25 & 25 Vict. c. 89, s. 163.
" The Court may at any time after the presentation of a petition for winding
up a company registered in pursuance of the Act, and before making an order
for winding up the company, upon the application by motion of any creditor of
the company, restrain further proceedings in any action, suit, or legal proceeding
against any contributory of the company, as well as against the company, upon
such terms as the Court thinks fit " : 25 & 26 Vict. c. 89, s. 197.
" Where an order has been made for winding up a company registered in pur-
suance of the Act, no suit, action, or other legal proceeding shall be commenced
or proceeded with against any contributory of the company in respect of any debt
of the company except with the leave of the Court, and subject to such terms as
the Court may impose" : 25 & 26 Vict. c. 89, s. 98.
" The Court may, at any time after the presentation of a petition for winding
up an unregistered company, and before making an order for winding up the com-
pany, upon the application of any creditor of the company, restrain further
proceeding in any action, suit, or proceeding, against any contributory of the
company or against the company upon such terms as the Court thinks fit " :
25 & 26 Vict. c. 89, s. 201.
" Where an order has been made for winding up an unregistered company, in
addition to the provisions hereinbefore contained in the case of companies formed
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670 STATUTORY JURISDICTION.
under this Act, it. is hereby further provided that no suit, action, or other legal
proceeding, shall be commenced or proceeded with against any contributory of the
company, in respect of any debt of the company, except with the leave of the
Court, subject to such terms as the Court may impose " : 25 & 26 Vict. c. 89, s. 202.
Where the creditor of a limited company has obtained judgment, and seized the
goods of a company by a tona fide execution before the winding-up petition was
presented, the Court has refused to restrain the creditor from proceeding to a
sale : Be The Great Ship Co., 10 Jur. (N.S.) 3 ; 12 W. B. 139. See also Be Lon-
don Cotton Co., L. E. 2 Eq. 53 ; Be Bastow, L. E. 4 Eq. 681 ; Order, p. 667 ; Be
Exhall Mining Co., 4 N. B. 127 ; Be Traders' North Staffordshire Carrying Co.,
L. R. 20 Eq. 60.
The 163rd section is to be read in conjunction with the 87th section ; and the
201st section is meant to meet cases in which there might have been unfair pro-
ceedings on the part of creditors: Be The Great Ship Co., 10 Jur. (N.S.) 3. See,
too. Ex' parte Hawkins, L. R. 3 Ch. 787.
Where the sale would obviously be injurious to the company and the other
creditors, the Court has restrained the sale of property seized under a fi. fa. before
the presentation of the petition : Be Sill Pottery Co., L. E. 1 Eq. 649.
In the latter case, a first charge was given by the Court to the execution cre-
ditors on the goods seized,'and the provisional liquidator ordered to sell the pro-
perty the subject of the execution : Order, p. 668.
And in a similar case, the Court has ordered the sheriff to deliver up the
property to the ofiScial liquidator to be sold in the winding-up, reserving to the
creditor the same priority against the proceeds of the sale as if it had been made
by the sheriff : Be Plas-yn-Mhowys Coal Co., L. R. 4 Eq. 689, 691 ; Order, p. 667.
Where the Court allows the execution creditor to proceed to a sale, he will not
be allowed to do so in a manner to deteriorate the value of the property seized,
and the Court has imposed terms : Be Bastow, L. R. 4 Eq. 681.
Where a company had vexatiously delayed the creditor so that he was not able
to issue execution upon his judgment until after presentation of the petition to
wind up, execution was allowed to be enforced : Be Imperial Steam Co., 16 W. E.
689 ; 37 L. J. (Ch.) 517.
Where a creditor, having obtained judgment, placed the writ of execution in
the hands of the sheriff some hours before the petition was presented for winding
up, but possession was not taken until some hours after the petition was pre-
sented, it was held that execution had not been " put in force " within the mean-
ing of the 103rd section : Be London and Dover Biscuit Co., L. E. 12 Eq. 190.
And a creditor who had obtained judgment against a company after the pre-
sentation of the petition, but before the winding-up order, has been refused leave
to enforce execution : Be Dimson's Estate Co., L. R. 19 Eq. 202.
Where the landlord of a company put in a distress on the morning of a day on
which the winding up order was made, the Court allowed him to proceed with the
•distress : Be Exhall Mining Co., 10 Jur. (N.S.) 576 ; 12 W. R. 727.
And the landlord was held entitled as against the official liquidator to receive
out of the money arising from the distress rent accrued subsequent to the distress,
as well as the rent for which the distress was levied : S. C. 13 W. E. 219.
Where a distress was put in for rent of offices of the company subsequently to
the winding-up' order, and the offices had not been retained for the use of the
company's business, the distress was held illegal under the 103rd section : Be
Progress Assurance Co., L. R. 9 Eq. 370.
But where a company, being equitable owner of a lease, continued after the
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THE COMPANIES ACTS, 1862 and 1867. , 671
winding-up order in ocrapation of the leaseholds, and left goods upon the land,
the landlord was held not to be prevented under sects. 87 or 163 from distraining
for rent accrued since the winding-up : Be Lundy Granite Co., Ex parte Etavan,
L. K. 6 Cb. 462.
Whether leave will be given to a judgment creditor to issue execution in any
case where execution has not been issued previously to the winding-up order,
qumre : Ee Universal Disinfector Co., L. B. 20 Eq. 162.
Judgment creditors in this country who have proved under the winding-up will
not be allowed to attach property in India belonging to the company : Be Orien-
tal Steam Co., L. K. 9 Ch. 557.
In the case of a voluntary winding-up the Court has power under the 138th
section to restrain actions and proceedings, as in the case of a winding-up by the
Court.
Where, in a voluntary winding-up, the Court restrained proceedings in an
action brought by a creditor against the company, the Court required the liquida-
tors to give the creditors access to the proceedings, and gave to the creditor his
costs of the action down to the time he had notice of the winding-up (the costs
to be added to his debt), but not the costs of the motion : Be Keynsham, 33 Beav.
123, hut incorrectly reported. See Beg. Min. Trin. Term, 1863, fo. 222. Order,
p. 668. See also Be Peninsular, &r... Banking Co., 35 Beav. 280.
Stat of Winding-tjp Proceedings.
Companies Act, 1862, s. 89.
Let all further proceedings in relation to tie winding-np of the
South Barrule Slate Quarry Company, Limited, be stayed, except for
the purpose of carrying out this order. Let J. M., on or before the
16th day of August instant elect whether he will remain as a holder
of — shares in the said company, or retire from it by surrendering
his shares, and. signify such his election by writing under his hand,
the petitioner by his counsel undertaking in case the said J. M. shall
within the time aforesaid elect to surrender his said shares, and give
notice in writing of such his intention to the petitioner, that the com-
pany will pay to the said J. M. the value (if any) of the shares and
interest of the said J. M. in the property of the company within four-
teen days after the value thereof shall have been ascertained. Let
such value be ascertained by the judge in chambers in case the
parties differ, and Let the costs of ascertaining such value be dealt
with in chambers as the judge shall direct.
Let the liquidators, out of the assets of the company, pay the costs
of the petitioners of this application, and retain their own costs of the
said petition [such costs to be taxed by the taxing master]. Let the
liquidators pay and transfer to the directors of the said company all
monej', property, and effects of the said company in their possession or
power. Let, upon such payment being made, the said liquidators be
discharged from all further liability to the company. Be South Bar^
rule Slate Quarry, L; E. 8 Eq. 688.
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672 STATUTORY JURISDICTION.
Stay of Proceedings.
" The Court may, at any time after an order has been made for winding up a
company, upon the apph'cation by motion of any creditor or contributory of the
company, and upon proof to the satisfaction of the Court that all proceedings in
relation to such winding-up ought to be stayed, make an order staying the same,
either altogether or for a limited time, on such terms and subject to such condi-
tions as it deems fit" : 25 & 26 Vict. c. 89, s. 89.
In a voluntary winding-up continued under supervision, the shareholders
agreeing that the further liquidation should be stayed, with a view to the com-
pany resuming business, an order was made accordingly, upon proof that the
debts were paid : Be South Barrule Slate Quarry Go., L. E. 8 Eq. 688 ;
Order, p. 671.
In the same case, the petition being opposed by one person only insisting upon
a sale, the option was given to him of retiring from the company, and the pay-
ment of the value of his interest. See also Re Marine Investment Co., L. E. 8 Ch.
702.
Meetings dieected by the Court.
Companies Act, 1862, s. 91.
" The Court may, as to all matters relating to the winding-up, have regard to
the wishes of the creditors or contributories, as proved to it by any sufficient
evidence, and may, if it thinks it expedient, direct meetings of the creditors or
contributories to be summoned, held, and conducted in such manner as the Court
directs, for the purpose of ascertaining their wishes, and may appoint a person to
act as chairman of any such meeting, and to report the result of such meeting
to the Court" : 25 & 26 Vict. c. 89, s. 91.
" In the case of creditors, regard is to be had to the value of the debts due to
each creditor, and in the case of contributories, to the number of votes conferred
on each contributory by the regulations of the company" : Ibid.
When the judge shall direct a meeting of the creditors or contributories of the
company to be summoned under the 91st or 149th sections, the official liquidator
shall give notice in writing seven clear days before the day appointed for such
meeting to every creditor or contributory of the time and place appointed for
such meeting, and of the matter upon which the judge desires to ascertain the
wishes of the creditors or contributories : G-en. Ord. Nov. 1862, rule 45.
Or, if the judge shall so direct, such notice may be given by advertisement, in
which case the object of the meeting need not be stated, and it shall not be neces-
sary to insert such advertisement in the London Gazette : Ibid.
The direction of the judge for any meeting of creditors or contributories under
the 91st or 149th sections, and the appointment of a person to act as chairman of
any such meeting, shall be testified by a memorandum signed by the chief clerk
of the judge : Gen. Ord. Nov. 1862, rule 47.
Where the Court has no power to make a winding-up order, it has no power to
direct a meeting to be held : Be Joint Stock Coal Co., L. R. 8 Bq. 146.
The 91st section is not confined to cases where a winding-up order has been
made, but applies also where a petition for winding up is before the Court : Be
Western of Canada Oil Co., L. R. 17 Eq. 1.
The Court has a discretionary power under the 91st section, and may refuse the
order or direct the petition to stand over : Be Langley Mill Co., L. E. 12 Eq. 26;
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THE COMPANIES ACTS, 1862 and 1867. 673
Planet Building Society, L. R. 14 Eq. 441 ; Western of Canada Oil Co., L. E.
17 Eq. 1.
As to meetings of companies formed under the principal Act, required by the
Acts, but not directed by the Court, see sect. 49 of principal Act, and sect. 39 of
Companies Act, 1862.
Winding-up in County Couet — -Transfbe — Appeal.
Companies Act, 1867, ss. 41-3.
" Where the Court of Chancery in England makes an order for winding up a
company under the principal Act, it may, if it think fit, direct all subsequent
proceedings to he had in a County Court held under the 9 & 10 Vict, c 95, and
Acts amending the same ; and thereupon such County Court shall for the purpose
of winding up the company be deemed to be " the Court within the meaning of
the principal Act " : Companies Act, 1867, s. 41.
When a winding-up order is made, application may be made at chambers for a
reference of the winding-up to the County Court : He London and Westminster Co-
operative Store Co., 17 L. T. 559, cited in Buckley, 2nd ed. 485.
" If during the progress of a winding-up it is made to appear to the High Court
of Chancery that the same could be more conveniently prosecuted in any other
County Court, it shall be competent for the High Court of Chancery to transfer
the same to such other County Court, and thereupon the winding-up shall proceed
in such other County Court": Companies Act, 1867, s. 42.
" If any parly in a winding-up under this Act is dissatisfied with the determi-
nation or direction of a judge of a County Court, or any matter in such winding-up,
such party may appeal from the same to the Vice-Chan cellor named for that
purpose by General Order: provided that such party shall within thirty days after
such determination or direction give notice of such appeal to the other party or
his attorney, and also deposit with the registrar of the County Court the sum of
£10 as security for costs of the appeal" : sect. 43.
Voluntary Winding-up of Company.
lies Act, 1862, s. 129.
" A company, under the Companies Act, 1862, may be wound up voluntarily:
(1.) Whenever the period (if any) fixed for the duration of the company by
the articles of association expires, or whenever the event (if any) occurs
upon the occurrence of which it is provided by the articles of aasocia-
tion that the company is to be dissolved, and the company in general
meeting has passed a resolution requiring the company to be wound up
voluntarily :
(2.) Whenever the company has passed a special resolution requiring the
company to be wound up voluntarily :
(3.) Whenever the company has passed an extraordinary resolution to the
effect that it has been proved to their satisfaction that the company
caimot by reason of its liabilities continue its business, and that it is
advisable to wind up the same ": 25 & 26 Vict. c. 89, s. 129.
" A voluntary winding-up shall be deemed to commence at the time of the
passing of the resolution authorizing such winding-up " : 25 cSc 26 Vict. c. 89,
s. 130.
2 X
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674 STATUTORY JUEISDICTION.
Under suh-sect. 2 of sect. 129 the winding-up is deemed to commence from the
date of the resolution confirming the winding-up, and from the presentation of
petition: Be Smith, Knight, & Go. (Weston's Case), L. E. 4 Ch. 20.
Under sub-sect. 3 the notice of the meeting must express the intention to
propose a resolution that the company is unable by reason of its liabilities to con-
tinue business, and that the resolution proposed is a final resolution : He Bridport
Old Brewery Co., L. E. '^ Ch. 191 ; Be Silkstone Colliery Co., L. E. 1 Ch. D. 38.
As to the effect of the voluntary winding up on the status of the company, and
the consequences ensuing upon a voluntary winding-up, see 25 & 20 Vict. c. 89,
ss. 131, 133.
" Any arrangement entered into between a company about to be wound up
voluntarily, or in the course of being wound up voluntarily, and its creditors, is
binding on the company if sanctioned by an extraordinary resolution, and on the
creditors, if acceded to bj' three-fourths in number and value of the creditors,
subject to such right of appeal as is hereinafter mentioned " : 25 & 26 Vict. c. 89,
s. 136.
" Any creditor or contributory of a company which has entered into such an
arrangement may within three weeks from the date of the completion of such
arrangement appeal to the Court against such arrangement, and the Court may
thereupon, as it thinks just, amend, vary, or ooniirm the same " : 25 & 26 Vict.
u. 89, s. 137.
" And the liquidators, or any contributory, may apply to the Court in England,
Ireland, or Scotland, to determine any question in such winding-up, and as to
enforcing calls ": see 25 & 26 Vict. c. 89, s. 138.
Where there is no liquidator, the Court may on the application of a contribu-
tory appoint a liquidator ; the Court may also, on due cause, appoint another
liquidator: see 25 & 26 Vict. c. 89, s. 141.
Every application under the 137th, 138th, or 141st sections, is to be made by
petition or motion, or, if the judges shall so direct, by summons at chambers :
Gen. Ord. 1862, rule 51.
Costs of Voluntary Winding-up.
" All costs, charges, and expenses properly incurred in the voluntary winding-
up of a company, including the remuneration of the liquidators, shall be payable
out of the assets of the company, in priority to all other claims " : 25 & 26 Vict,
c. 89, s. 144.
A liquidator appointed under a resolution to wind up voluntarily is not per-
sonally responsible to the solicitor for any of the costs of such liquidation:
Freeman's Estate, L. E. 14 Eq. 278.
Voluntary Winding-up not to bar Creditor's Eight to Compulsory
Order.
" The voluntary winding-up of a company shall not be a bar to the right of
any creditor to have the same wound up by the Court, if the Court is of opinion
that the rights of such creditor will be prejudiced by a voluntary winding-up " :
25 & 26 Vict. c. 89, s. 145.
And compulsory orders have been made under sect. 145, upon petition of contri-
butories : London Flour Co., 16 W. E. 474, 552 ; Re Lmsdale Vale Ironstone
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THE COMPANIES ACTS, 1862 and 1867. 675
Co., 16 W. R. 601 ; Be Littlehamptan Steamship Go., 34 Beav. 256 ; 2 De G. J.
& S. 521.
Creditors are entitled to a compulsory order if their rights are likely to be pre-
judiced by a voluntary winding-up : Be Manchester Queensland Cotton Co., 15
W. R. 1070 ; Be General Boiling Stock Co., 34 Beav. 314 ; Be Barned's Bank-
ing Co., 14 W. E. 722 ; Be Lonsdale Vale Ironstone Co., 16 "W. B. 601 ; Uni'
versal Drug Association, 22 "W. E. 675.
Adopting Peoceedings op Voluntary Winding-up.
" Where a company is in course of being wound up voluntarily, the Court may,
if it thinks fit, notwithstanding that it makes an order directing the company to
be wound up by the Court, provide in such order for the adoption of all or any
of the proceedings taken in the course of the voluntary winding-up " : 25 & 2S
Vict. c. 89, s, 146.
Winding-up sd eject to Supervision.
Gompaniea Act, 1862, ss. 147-52.
Upon the petition, &c.. Let the voluntaiy winding-up of the said —
company be continued, but subject to the supervision of this Court ;
and any of the proceedings under the said voluntary winding-up may
be adopted as the judge shall think fit. And the creditors, contri-
butories, and liquidators of the said company, and all other persons
interested, are to be at liberty to apply to the judge at chambers as
there may be occasion.
Supervision Orders, when made.
" When a resolution has been passed by a company to wind up voluntarily,
the Court may make an order directing that the voluntary winding-up should
continue, but subject to such supervision of the Court, and with such liberty for
creditors, contributories, or others to apply to the Court, and generally upon such
tei-ms and subject to such conditions as the Court thinks just " : 25 & 26 Vict.
c. 89, s. 147.
When a supervision order is made the winding-up is deemed to commence from
the date of the resolution : Eodghinson v. Kdly, L. R. 6 Eq. 496.
Where a resolution for the voluntary winding-up of a company has been duly
made the Court will not, in general, interfere by ordering the winding-up to
be compulsory, or to be continued under supervision, unless there has been fraud
or undue influence in passing the resolution : Be Bank of Qibraltar, L. E. 1 Ch.
69 ; Be Beaujolais Wine Co., L. R. 3 Ch. 15 ; i?e London and Merccmtile Discount
Co., L. R. 1 Eq. 277 ; Be Irrigation Company of France, L. E. 6 Ch. 176.
Where a petition was presented for winding up by the Court against a company
in the course of a voluntary winding-up, upon the ground of misapplication of funds,
the evidence being insufficient to establish the case, but sufficient to lay ground for
inquiry, liberty was given to the petitioners to file a bill in the name of the com-
pany against the directors, the petitioners (contributories) indemnifying the
company against costs : Be Bank of Gibraltar, L. R. 1 Oh. 69.
Personal misconduct of liquidators in a voluntary winding-up is not ground
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676 STATUTOEY JURISDICTION.
for a supervision order by the Court : Be London Bank of Scotland, 15 W. E.
1103. Nor for a compulsory order where the company is being wound up under,
supervision : Re Landim, and Mediterranean Bank, 15 W. E. 33.
A petition praying wholly or in part that a voluntary winding-up should
continue, but subject to the supervision of the Court, shall, for the purpose of
giving jurisdiction to the Court over suits and actions, be deemed to be a peti-
tion for winding up the company by the Court : 25 & 26 Vict. c. 89, s. 148.
The Court may in determining whether a company is to be wound up altogether
by the Court, or subject to the supervision of the Court, in the appointment of
liquidator or liquidators, and in all other matters relating to the winding-up
subject to supervision, have regard to the wishes of the creditors or contributories
as proved to it by any sufficient evidence, and may direct meetings of the cre-
ditors or contributories to be summoned, held, and regulated in such manner as
the Court directs for the purpose of ascertaining their wishes, and may appoint
a person to act as chairman of any such meeting, and to report the result of such
meeting to the Court; in the case of creditors regard shall be had to the value of
the debts due to each creditor, and in the case of contributories to the number of
votes conferred on each contributory by the regulations of the company : 25 & 26
Vict. c. 89, s. 149.
For cases upon shareholders' iwtitions, where supervision orders have been made
at the wish of the majority of creditors : see Buckley, 2nd ed. 283 ; Be Oriental
Commercial Bank, 15 W. E. 7 ; Be London Flour Co., 16 W. E. 474, 552 ;
and at the' wish of the majority of creditors and shareholders : Be Trowhridge
Water Supply, 18 L. T. 115 ; Be Prince of Wales Slate Quarry Co., 18 L. T.
77. For cases where a compulsory order was made : see Be Lonsdale Vale Iron-
stone Co., 16 W. E. 601 ; Be Littlehampton, &c.. Steamship Co., 34 Beav. 256 ;
2 De Gr. J. & S. 521. For cases upon creditors' petitions where compulsory
order was made : see Be Earned' s Banking Co., 14 W. R. 722 ; Be Manchester
Queensland Cotton Co., 15 W. E. 1070.
" Where any order is made by the Court for a winding-up subject to the super-
vision of the Court, the Court may in such order, or any subsequent order,
appoint any additional liquidator or liquidators ; and any liquidator so appointed
by the Court shall have the same powers, &c., as if they had been appointed by
the company : the Court from time to time remove any liquidators so appointed
by the Court, and fill up any vacancy occasioned by such removal, or by death,
or resignation " : 25 & 26 Vict. o. 89, s. 150.
Where the contributories have not at the proper time exercised their righ t of
appointing the liquidator, and the Court has appointed one, the Court of Appeal
will not interfere with the discretion of the primary judge : Be London Quays
and Warehouses Co., L. R. 3 Ch. 394.
Where an order is made for a winding-up subject to the supervision of the
Court, the liquidators may, subject to any restrictions imposed by the Court,
exercise all their powers without the sanction or' intervention of the Court, in the
same manner as if the company were being wound up voluntarily ; but save as
aforesaid any order made by the Court for a winding-up subject to the super-
vision of the Court shall for all purposes, including the staying of actions, suits,
and other proceedings, be deemed to be an order of the Court for winding up the
company by the Court, and shall confer full authority on the Court to make
calls, &c. : 25 & 26 Vict. c. 89, s. 151.
Under the last-mentioned section the following order was made in Be London-
Quays and Warehouses Co., L. E. 3 Ch. 394, 402 : " Let C. be nppoinfed
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THE COMPANIES ACTS. 1862 and- 1867. 677
liquidator to conduct the winding-up of the company, subject to such rpstrictions
as an official liquidator would in a compulsory winding-up he subject to, except
so far as the Court may upon an application for that purpose modify or dispense
with such restrictions in any case or class of cases."
Where the Court has not given any directions restricting the power of the
liquidator, the sanction of the Court was held unnecessary to arrangements made
by the liquidator sanctioned by meetings of the contributories, although the com-
pany was being wound up under supervision : Wright's Case, L. E. 5 Ch. 437.
Where an order has been made for the winding-up of a company subject to the
supervision of the Court, and such order is afterwards superseded by an order
directing the company to be wound up compulsorily, the Court may in such last-
mentioned order, or in any subsequent order, appoint the voluntary liquidators, or
any of them, either provisionally or permanently, and either with or without the
addition of any other persons, to be official liquidators : 25 & 26 Vict. c. 89,
s. 152.
Where an order made for the continuation of a voluntary winding-up under
supervision is superseded by an order for compulsory winding-up, the winding-up
commences from the passing of the resolution and not from the date of presenta-
tion of the petition: Be United Service Co., L. E. 7 Eq. 76.
Where a compulsory order is made the voluntary liquidator is usually made
the official liquidator : London and Mediterranean iBanhing Co., 15 W. E. 33.
ApPKA^iS.
Companies Act, 1862, s. 124.
Ee-hearings of and appeals from any order or decision made or given in the
matter of the winding-up of a company by any Court having jurisdiction under
the Act may be had in the same manner and subject to the same conditions to
which appeals may be had from any order or decision of the same Court in cases
within its ordinary jurisdiction : 25 & 26 Vict. c. 89, s. 124.
But notice of the re-hearing or appeal must be given within three weeks after
the order complained of has been made in manner in which notices of appeal are
ordinarily given according to the practice of the Court appealed from, unless the
time is extended by the Court of Appeal : Ibid.
The Lord Warden of the Stannaiies may by a special or general order remit at
once any appeal allowed and regularly lodged with him against any order or
decision of the Vice-Warden made in the matter of a winding-up to the Court of
Appeal in Chancery, which Court shall thereupon hear and determine such appeal,
and have power to require all such certificates of the Vice- Warden, records of pro-
ceedings below, documents and papers as the Lord Warden might have required,
and any order so made by the Court of Appeal in Chancery shall be final without
any further appeal : Ibid.
Sect. 124 does not apply to an order made on the original petition for winding
up, but only to orders made under an existing order to wind up : lie Universal
Btrnk, L. E. 1 Ch. 428.
The Court of Appeal has power after the expiration of the three weeks to
extend the time for appealinji : Banner v. Johnston, L. E. 5 H. L. 157 ; Ehbw
Vale Co.'s Case, L. K. 5 Ch. 112 ; Be Bastow,.S5 L. J. (Ch.) 51.
Where the time for appealing had expired, but the error in point of law had
not been decided in another but similar case by the Superior Court within that
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678 STATUTORY JURISDICTION.
time, the time for appealing was extended : Ebbw. Vale Co.'s Case, L. E. 5 Oh,
112.
But the mere fact that a different decision has been arrived at in a similar case
by a Court of co-ordinate jurisdiction, is not a sufficient ground for extending
the time for appealing : Be Bull Forge Co., 15 W. R. 474.
And the policy of the Winding-up Acts being realization of assets, delays in
appealing are discouraged : Be United Ports, &c., Company, L. R. 20 Bq. 639 ;
Be Charles Laffitte & Co., L. E. 10 Ch, 316,
In a proper case leave will be given to have an appeal reheard, and to adduce
fresh documentary evidence : Be Wiltshire Iron Co., L. R. 3 Ch. 443.
The Court has jurisdiction to discharge an order made in the winding-up of a
company, if considered as a nullity, notwithstanding that more than the three
weeks has elapsed : Be Estates Investment Co., L. R. 8 Eq. 227.
Where the question to be discussed was an important one, the Court has, upon
an ex parte application, extended the time for appealing, reserving to the respon-
dents the right to insist on the objection of time at the hearing of the appeal : Be
EuU Forge Co., 15 W. R. 388.
The appeal from an order made by the County Court in the winding-up of a
company under the Industrial and Provident Societies Act, 1862 (25 & 26 Vict,
c. 87), under sect. 17 of that Act, has been to the Court of Chancery : Buckley,
2nd ed., p. 261 ; citing Henderson v. Bamber, 35 L. J. (C.P.) 65.
Time foe Appealing.
The time for appealing from any order or decision made or given in the matter
of the winding-up of a company under the provisions of the Companies Act,
1862, or any Act amending the same, shall be the same as the time limited for
appeal from an interlocutory order under Rule 15 (twenty-one days) : Jud. Rules,
Order 58, r. 9 ; ante, p. 71.
Disposition of Property.
Gompanies Act, 1862, s. 153,
Where a company is being wound up by the Court, or subject to the super-
vision of the Court, dispositions of the property and effects of the company made
between the commencement of the winding-up and the order for winding up arc
void. See sect. 153, and cases cited in Buckley, 2ud ed., p. 287.
The books and accounts of the company and liquidators are, as between the
contributories, jsrma/acie evidence of the truth of all matters recorded therein :
sect. 154.
Inspection of Books and Papers.
Gompanies Act, 1862, «. 156.
" Where an order has been made for winding up a company by the Court, or
subject to the supervision of the Court, the Court may make such order for the
inspection by the creditors and contributories of the company of its books and
papers, as the Court thinks just, and any books and papers in the possession of
the company may be inspected by oi-editors or contributories in conformity with
the order of the Court, but not further or otherwise" : sect. 156.
Where the debts were large, and the transactions of the company complicated.
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THE COMPANIES ACTS, 1862 and 1867. 679
the Court allowed an inspection of the accounts by an accountant on behalf of
the shareholders, without negligence being proved against the official liquidator :
Ex parte Buchanan, 15 W. R. 99.
A clause in the articles of association directing that the books of account should
be open to the inspection of shareholders during the hours of business, was held
not to be applicable when the company is under voluntary liquidation : Re
Yorkshire Fibre Co., L. E. 9 Eq. 650 ; see also Ex parte Davis, 16 W. R. 668.
Where one company had transferred its business to another, and both com-
panies were subsequently wound up in different branches of the Court, the books
of the company whose business was transferred were ordered to be produced to
the official liquidator of that company at the chambers of the judge orderiog the
winding-up of the other company : Be Natimal Financial Co., 15 W. B. 499.
Proof of Debts — Ceetain or Contingent.
Companies Act, 1862, s. 158.
In the event of any company being wound up under this Act, all debts pay-
able on a contingency, and all claims against the company, present or future,
certain or contingent, ascertained or sotmding only in damages, shall be admis.si-
ble to proof against the company, a just estimate being made so far as possible
of the value of all such debts or claims as may be subject to any contingency or
sound only in damages, or for some other reason do not have a certain value " :
sect. 158.
For cases under this section, see Buckley, 2nd ed., p. 293.
" The value of such debts and claims as are made admissible to proof by this
section are to be estimated according to the value at the date of the order to wind
up" : Gen. Ord. 1862, rule 25.
By the 35 & 36 Vict. c. 41, s. 5, with respect to life assurance companies the
commencement of whose winding up is subsequent to the 6th of August, 1872,
the value of annuities of policies is to be estimated in manner provided by the
first schedule to the Act.
As regards the valuation of policies and annuities in any winding-up com-
menced before the 6th of August, 1872 : see Bell's Case, L. E. 9 Bq. 706 ; Be
ETiglish Assurance Co., L. E. 14 Eq. 72 ; Lancaster's Case, Be Albert Assurance,
L. E. 14 Eq. 72, n.
A claim under a winding-up in respect of a policy of life assurance is not
affected by non-payment of the premiums after the commencement of the winding-
up : Cook's Policy, L. E. 9 Eq. 703.
In the case of a transfer or amalgamation either before or after the 6th of
August, 1872, no policy-holder of the transferor company shall by reason of pay-
ment of premiums to the transferee company made after that date, or by reason
of any other act done after that date, be deemed to have abandoned any claim
which he would have had against the transferor company on due payment of
premiums to such company, or to have accepted in lieu thereof the liability of the
transferee company, unless such abandonment and acceptance have been signified
by some writing signed by him, or by his agent lawfully authorized : 35 & 36
Vict. c. 41, s.'7.
See Life Asscbakce Companies, post, p. 688.
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680 STATUTORY JURISDICTION.
Suspected Persons — Production of Documents — Examination —
Arrest.
"The Court may, after it has made an order for winding up the company,
summon before it any officer of the company or person known or suspected to
have in his possession any of the estate or effects of the company, or supposed to
be indebted to the company, or any person whom the Court may deem capable of
giving information concerning the trade dealings, estate, or effects of the company ;
and the Court may require any such officer or person to produce any books,
papers, deeds, writings, or other documents in his custody or power relating to
the company ": 25 & 26 Vict. c. 89, s. 115.
" And if any person so summoned, after being tendered a reasonable sum for his
expenses, refuses to come before the Court at the time appointed, having no
lawful impediment (made known to the Court at the time of its sitting, and
allowed by it), the Court may cause such person to be apprehended and brought
before the said Court for , examination ; nevertheless, in cases where any person
claims any lien on papers, deeds, or writings, or documents produced by him,
such production shall be without prejudice to such lien, and the Court shall
have jurisdiction in the winding-up to determine all questions relating to such
Men": Ibid.
See also as to examination upon oath, sects. 117, 127.
The proper mode of summoning before the examiner is not by subpoena, but by
summons at chambers : Re English Joint Stock Bank, L. R. 3 Eq. 303.
Where the sister and nephew of an indebted contributory were summoned
before the examiner, and refused to answer, they were held bound to answer,
although there were no facts found except the relationship to connect them with
the contributory or company : Swan's Case, L. R. 10 Eq. 675 ; Fricker's Case,
L. R. 13 Bq. 178, and Clement's Case, there cited.
A mere ci'editor is not within the scope of the section : Se Accidental and
Marine Insurance Association, L. R. 5 Eq. 22.
A stockbroker asserted to have acted improperly, will be examined, as a matter
of course, as to the circumstances of a transfer : Baker's Case, 19 W. R. 55 ;
40 L. J. (Ch.) 15 ; see also Pricker's Case, L. R. 13 Bq. 178.
The manager of a bank where a contributoiy has had an account is liable to
attend and be examined, and to produce any books and documents relative to
such accounts : Druitt's Case, L. R. 14 Eq. 6,
So, too, the secretary of a banking company, with whom a person taking an
active part in procuring a transfer of shares in the company kept his account :
Be Smith, Knight, & Co., L. R. 4 Oh. 421.
Any person who is indebted to a contributory is liable to be summoned:
Trower and Laioson's Case, L. R. 14 Eq. 8.
Witnesses summoned under sect. 115, and refusing to attend, are liable to pay
the costs of compelling their attendance : S. 0.
Where a person is examined, his counsel and solicitor ai-e entitled to be present
at the e.\amination to examine the deponent when his examination on behalf of the
oflBoial liquidator is concluded : £e Breech-loading Armoury Co., L. K 4 Bq. 453.
The witness must answer questions which refer to mere hearsay : Be Ottoman
Co., 15 W. R. 1069.
Where leave had been given to a claimant against a company to continue his
action after the winding-up, this was held not to relieve him from liability to be
summoned as a witness : Be Contract Corporation, 15 W. R. 118.
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THE COMPANIES ACTS, 1862 and, 1867. 681
Absconding Conteibutoey.
Seizure of Goods — Companies Act, 1862, s. 118.
Let the liquidators of the Imperial Mercantile Credit Association,
Limited, seize the books, papers, moneys, securities for moneys, goods,
and chattels of H. H. C, of — , a contributory of the above-mentioned
association, and keep the same safely until further order. Be Imperial
Mercantile Credit Co., L. E. 5 Eq. 264.
" The Court may, at any time before or after it has made an cider for winding up
the company, upon proof being given that there is probable cause for believing
that any contributory to such company is about to quit the United Kingdom, or
otherwise abscond, or to remove or conceal any of his goods or chattels, for the
purpose of evading payment of calls, or for avoiding examination in respect of
the affairs of the company, cause such contributory to be arrested, and his books,
papers, moneys, securities for money, goods, and chattels to be seized, and him
and them to be safely kept until such time as the Court may order " : sect. 118.
Upon evidence that a contributory was about to sell off his goods and chattels
for the purpose of evading payment of a call, the Court, reading this section
alternatively, made an order for the seizure of his goods, &c., but declined to
order his arrest upon hearsay statement of his intention to leave the United
Kingdom: Re Imperial Mercantile Credit Co., 5 Eq. 264 ; Order, siipra.
Enforcement op Oedees.
Order made under the Act may be enforced in the same manner in which
orders of the Court of Chancery made in any suit may be enforced : sect. 120.
Where an order has been made in Scotland for winding up a company by the
Court, orders may be made upon the contributories in Scotland to pay calls :
sect. 12i:
Orders made in England may be enforced in Ireland and Scotland, and vice
versa: sect. 122.
An order by the Court in Ireland, or in Scotland, when brought over here to be
enforced, must be made an order of that Court which would have had jurisdiction
to wind up the company if it had been registered here ; that is, of the Court of
Chancery : Buckley, 2nd ed. 257 ; Eolyford Copper Mining Co., L. R. 5 Ch. 93.
UnEBGISTEEED CoMPAJnES.
Companies Act, 1862, «. 199.
" Subject as in the Act mentioned, any partnership, association, or company,
except railway companies incorporated by Act of Parliament, consisting of more
than seven members and not registered under that Act, and therein included
under the term unregistered conipany, may be wound up under the Act; and all
the provisions of the Act with respect to winding up shall apply to such com-
pany, with the following exceptions and additions : —
(1.) An unregistered company shall, for the purpose of determining the
Court having jurisdiction in the matter of the winding-up, be deemed
to be registered in that part of the United Kingdom where its principal
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682 STATUTOEY JUEIS DICTION.
place of business is situate ; or if it has a principal place of business
situate in more tlian one part of the United Kingdom, then in each
part of the United Kingdom where it has a principal place of business ;
moreover, the principal place of business of an unregistered company,
or (where it has a principal place of business situate in more than one
part of the United Kingdom), such one of its principal places of
business as is situate in that part of the United Kingdom in which
proceedings are being instituted, shall, for all the purposes of the
winding-up of such company, be deemed to be the registered ofBce of
the company :
(2.) No unregistered company shall be wound up under this Act voluntarily
or subject to the supervision of the Court :
(3.) The circumstances under which an unregistered company may be wound
up are as follows ; (that is to say,)
(a.) Whenever the company is dissolved, or has ceased to carry on
business, or is carrying on business only for the purpose of winding
up its affairs :
(6.) Whenever the company is unable to pay its debts :
(c.) Whenever the Court is of opinion that it is just and equitable that
the company shall be wound up :
(4.) An unregistered company shall, for the purposes of the Act, be deemed
to be unable to pay its debts :
(a.) Whenever a creditor to whom the company is indebted at Law or in
Equity, by assignment or otherwise, in a sum exceeding £50 then
due, has served on the company, by leaving the same at the prin-
cipal place of business of the company, or by delivering to the secre-
tary, or some director or principal ofiBcer of the company, or by other-
wise serving the same in manner as the Court may approve or direct,
a demand under his hand requiring the company to pay the sum so
due, and the company has, for the space of three weeks succeeding
the service of such demand, neglected to pay such sum, or to secure
or compound for the same to the satisfaction of the creditor :
(b.) Whenever any action, suit, or other proceeding has been instituted
against any member of the company for any debt or demand due, or
claimed to be due, from the company, or from him in his character
of member of the company, and notice in writing of the institution
of such action, suit, or other legal proceeding having been served
upon the company by leaving the same at the principal place of
business of the company, or by delivering it to the secretary, or
some director, manager, or principal ofiScer of the company, or by
otherwise serving the same in such manner as the Court may approve
or direct, the company has not, within ten days after service of such
notice, paid, secured, or compounded for such debt or demand, or
procured such action, suit, or other legal proceeding to be stayed,
or indemnified the deft to his reasonable satisfaction against such
action, suit, or other legal proceeding, and against all costs, damages,
and expenses to be incurred by him by reason of the same :
((,■.) Whenever, in England or Scotland, execution or other process issued
on a judgment, decree, or order obtained in any Court in favour of
any creditor in any proceeding at Law or in Equity instituted by
such creditor against the company, or any member thereof as such,
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THE COMPANIES ACTS, 1862 and 1867. 683
or against any person authorized to be sued as nominal deft on
behalf of the company is returned unsatisfied :
(d.) Whenever, in the case of an unregistered com pany engaged in working
mines within and subject to the jurisdiction of the Stannaries, a
customary decree or order absolute for the sale of the machinery,
materials, and effects of such mine has been made in a creditor's
suit in the Court of the Vice-Warden :
(e.) Whenever, in Scotland, the inducice of a charge for payment on an
extract decree, or an extract registered bond, or an extract registered
protest has expired without payment being made :
(/•) Whenever it is otherwise proved to the satisfaction of the Court that
the company is unable to pay its debts : 25 & 26 Vict. c. 89,
s. 199.
For cases under this section, see Bower v. Hope Insurance Society/, 11 H. L. 0.
389 ; JRe London India Bubber Co., L. R. 1 Oh. 329 ; He Bank of London,
L. E. 6 Oh. 421 ; Be Family Endowment, L. E. 5 Oh. 118 ; Be Commercial
Bank of India, L. R. 6 Eq. 517 ; Exmouth Docks Co., L. E. 17 Bq. 181 ; Ward
V. SiUingbourne By. Co., L. E. 9 Oh. 488 ; Be Boyal Victoria Co., L. E. 18 Bq. 661.
But a benefit building societynot registered under the Industrial and Provident
Societies Acts, 1852 and 1862, is subject to the provisions of the Companies Act,
1862, with respect to winding up : see Be Midland Counties Benefit Building
Society, 12 W. E. 661 ; 13 W. E. 399 ; Be Doncaster Permanent Building Society,
L. E. 3 Eq. 158 ; Be Quern's Benefit Building Society, L. E. 6 Oh. 815.
As to orders winding up mutual societies, see Be Shields Marine Insurance
Association, L. E. 5 Eq. 368 ; Be London Marine Insurance Association, L. E.
8 Bq. 176 ; Be Albert Average Association, L. R. 5 Oh. 597 ; Be Merchants and
Tradesman's Assurance Society, L. E. 9 Bq. 694.
As to the persons who, in the event of an unregistered company being wound
up, are to be deem.ed contributories, see 25 & 26 Vict. c. 89, s. 200 ; Buckley,
2nd ed. 367.
" The Court may, at any time after the presentation of a petition for winding
up an unregistered company, and before making an order for winding up the
company, upon the application of any creditor of the company restrain further
proceedings in any action, suit, or proceeding against any contributory of the
company, or against the company, as hereinbefore (see sect 85) provided, upon
such terms as the Court thinks fit : " 25 & 26 Vict. c. 89, s. 201.
And where an order has been made for winding up an unregistered company,
no suit, action, or legal proceeding is to be commenced or proceeded with against
any contributory of the company in respect of any debt of the company, except
with the leave of the Court, and subject to such terms as the Court may impose :
25 & 26 Vict. 0. 89, s. 201.
Life Assurance Companies.
33 & 34 Vjct. c, 61 ; 34 & 35 Vict. c. 58 ; 35 & 36 Vict. c. 41.
" The Court may order the winding-up of any company in accordance with the
Companies Act, 1862, on the application of one or more policy-holders or share-
holders, upon its being proved to^ the satisfaction of the Court that the company
is insolvent ; and in determining whether or not the company is insolvent, the
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684: STATUTORY JURISDICTION.
Court shall take into account its contingent or prospective liability under poli-
cies and annuities and other existing contracts ; but the Court shall not give a
hearing to the petition until security for costs for such amount as the judge
shall think reasonable shall be given, and until a prima facie case shall also he
established to the satisfaction of the judge ; and in the case of a proprietary com-
pany having an uncalled capital of an amount sufScient with the future premiums
receivable by the company to make up the actual invested assets equal to the
amount of the estimated liabilities, the Court shall suspend further proceedings
on the petition for a reasonable time (in the discretion of the Court), to enable
the uncalled capital, or a sufficient part thereof, to be called up; and if at the end
of the original or any extended time for vphich the proceedings shall have been
suspended, such an amount shall not have been realized by means of calls as,
with the already invested assets, to be equal to the liabilities, an order shall he
made on the petition as if the company had been proved insolvent " : 33 & 34
Vict. 0. 61, s. 21.
Winding-up of Subsidiary Company.
" Where the business, or any part of the business, of a life assurance company
has, either before or after the passing of this Act, been transferred to another
company under an arrangement in pursuance of which such first-mentioned com-
pany (in this Act called the subsidiary company), or the creditors thereof has or
have claims against the company to which such transfer was made (in this Act
called the principal company), then, if such principal company is being wound up
by or under the supervision of the Court, either before or after the passing of this
Act, the Court shall (subject as hereinafter mentioned) order the subsidiary com-
pany to be wound up in conjunction with the principal company, and may by
the same or any subsequent order appoint the same person to be liquidator for
the two companies, and make provision for such other matters as may seem to
the Court necessary, with a view to such companies being wound up as if they
were one company ; and the commencement of the winding-up of the principal
company shall, save as otherwise ordered by the Court, be the commencement of
the winding-up of the subsidiary company ; the Court, nevertheless, shall have
regard in adjusting the rights and liabilities of the members of the several com-
panies between themselves to the constitution of such companies, and to the
arrangements entered into between the said companies, in the same manner as
the Court has regard to the rights and liabilities of different classes of contri-
butories in the case of winding up of a single company, or as near thereto as
circumstances will admit :
" Where any subsidiary company, or company alleged to be subsidiaiy, is not in
process of being wound up at the same time as the principal company to which
it is subsidiary, the Court shall not direct such subsidiary company to be wound
up unless, after hearing all objections (if any) that may be urged by or on behalf
of such company against its being wound up, the Court is of opinion that such
company is subsidiary to the principal company, and that the winding-up of such
company in conjunction with the principal company is just and equitable :
" Where any subsidiary company and principal company are being wound up
by different branches of the Court, the Court to which appeals from such branches
lie shall make an order directing in which branch the windins-up of such
companies is to he cavried-on, and the necessary proceedings shall be taken for
carrying such order into effect :
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THE COMPANIES ACTS, 1862 and 1867. 685
" An ^plication may be made in relation to the winding-up of any subsidiary
company in conjunction with a principal company by any creditor of or person
interested in such principal or subsidiary company :
" Where a company stands in the relation of a principal company to one com-
pany, and in the relation of a subsidiary company to some other company, or
where there are such several companies standing in the relation of subsidiary
companies to one principal company, the Court may deal with any number of
such companies together or in separate groups, as it thinks most expedient,
upon the principles laid down in this section " : 35 & 36 Vict. o. 41, s. 4.
Valuation of Policies and Annuities.
" Where a life assurance company is being wound up by the Court, or subject
to the supervision of the Court, or voluntarily, the value of every life annuity
and life policy requiring to be valued in such winding-up shall be estimated
iu manner provided by the first schedule to this Act, but this section shall not
apply to any company the winding-up of which has commenced before the pass-
ing of this Act, unless the Court, having cognizance of the winding-up so order,
which order that Court is hereby empowered to make if it think it expedient so
to do, on the application of any person interested in the winding-up of such
company " : 35 & 36 Vict. c. 41, s. 5.
" The rules in the 1st and 2nd schedules to this Act shall be of the same force
as if they were rules made in pursuance of the 170th, 171st, and 173rd sections
of 'The Companies Act, 1862,' as the case may be, and maybe altered in
manner provided, by the said sections, and rules may be made under the said sec-
tions for the purpose of carrying into effect the provisions of this Act with
respect to the vrinding-up of companies '' : 35 & 36 Vict. c. 41, s. 6.
EuLB FOR Valuation of Annuity.
An annuity shall be valued according to the Tables used by the company which
granted such annuity at the time of granting the same, and where such tables
cannot be ascertained or adopted to the satisfaction of the Court, then according
to the table known as the Government Annuities Experience Table, interest being
reckoned at the rate of £4 per cent, per annum ": 35 & 36 Vict.' c. 41, First
Schedule.
EULE FOE valuing A PoLICY.
" The value of the policy is to be the difference between the present value of
the reversion in the sum assured on the decease of the life, including any bon'us
or addition thereto made before the commencement of the winding-up and the
present value of the future annual premium :
" In calculating such present values the rate of interest is to be assumed as
being £4 per cent, per annum, and the rate of mortality as that of the tables
known as the Seventeen Offices Experience Tables :
" The premium to be calculated is to be such premium as, according to the
said rate of interest and rate of mortality, is sufficient to provide for the risk
incurred by the office in issuing the policy, fexclusive of any addition thereto for
office expenses and other charges ": 35 & 36 Vict. c. 41, First Schedule.
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686 STATUTORY JUEISDICTION.
Official Liquidator — ^Notice of Valuation.
" Where an assurance company is being wound up by the Court or subject to
the supervision of the Court, the oflScial liquidator in the case of all persons ap-
pearing by the books of the company to be entitled to or interested in policies
granted by such company, for life assurance, endowment, annuity, or other pay-
ment, is to ascertain the value of such policies, and give notice of such value to
such persons, and any person to whom notice is so given shall be bound by the
value so ascertained, unless he gives notice of his intention to dispute such value
in manner and within a time to be prescribed by a rule or order of the Court ":
35 & 36 Vict. c. 41, Second Schedule.
Novation by Policy-holders.
" Where a company, either before or after the passing of this Act, has trans-
ferred its business to or been amalgamated with another company, no policy-
holder in the first-mentioned company who shall pay to the other company the
premiums accruing due in respect of his policy shall, by reason of any such
payment made after the passing of this Act, or by reason of any other Act, be
deemed to have abandoned any claim which he would have had against the first-
mentioned company on due payment of premiums to such company, or to have
accepted in lieu thereof the liability of the other company, unless such abandon-
ment and acceptance have been signified by some writing signed by him or by
his agent lawfully authorized ": 35 & 36 Vict. c. 41, s. 7.
Eeduction of Capital.
Gom/panies Act, 1867.
Order under Sect. 11.
(JpoN the petition, &c., and upon reading [evidence] the London
Gazette of the ■ — • day of — [other newspapers, if any'\, all containing a
notice that the said petition was appointed to be heard this day pur-
suant to the directions of the jndge indorsed on the said petition. [If
payment in has teen directed, add : The Paymaster- General's receipt,
dated, &o., whereby it appears that the petitioners on the — day of —
paid into Court to the credit, &o., the sum of £ — , pursuant to the order
dated, Ac] Let the special resolution passed at an extraordinary
general meeting of the said company held on the — day of — , and
confirmed at an extraordinary general meeting of the said company
held on the — day of — , and which resolution was in the words and
figures following, that is to say [recite resolution'\ be confirmed.
Let this order be produced to the Kegistrar of Joint Stock Compa-
nies and an oflSce copy thereof delivered to him, together with a minute
in the words or to the effect set forth in the schedule hereto. Let
notice of the registration by the said registrar of this order and of the
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THE COMPANIES ACTS, 1862 and 1867. 687
said minute be piiblished as follows, that is to say, &c. Let the said
company be at liberty after the expiration of — days [or weeks] from
the date of this order to discontinue the addition to its name of the
words " and Eeduced."
[The Schedule dhooe referred toJ\
Minute approved by the board.
The capital of the company is £ — , divided into — shares of £ —
each. Be Benshaw (V.-C. W.), July 24, 1871.
Order under Sect. 14 — Creditors' Consent dispensed with.
It appearing by the chief clerk's certificate dated, &o., that all the
creditors of the Credit Foncier of England consent to the said petition
other than the Commissioners of Income Tax, and the National Bank
of Scotland, and G. L. and J. L. S., and the debenture holders set forth
in the first part of the schedule to the chief clerk's certificate, Let the
said Credit Foncier Company on or before the 10th of February, 1871,
pay into Court to the credit of the Credit Foncier of England, Limited
and Keduced, " The account of income tax," £235 19s. 8d., found d,ue to
the Commissioners of Income Tax .... And the Court being of opinion
that none of the said debts of the said National Bank of Scotland, G-. L.
and J. L. S., or of the debenture holders, require to be provided for in
the manner required by the 14th section of the Companies Act, 1867,
Let upon such payment into Court being made, the special resolution
passed, &c., and confirmed, &o., and which resolution was in the words
following [reciting resolution~\ be confirmed.
Let this order, together with the original receipt from the Bank of
England for such payment as aforesaid be produced to the Eegistrars of
Joint Stock Companies, and an ofSce copy of this order be delivered to
them, together with a minute in the words or to the efiect set forth in
the schedule hereto.
Let notice of the registration by the registrar of this order and of
the said minute be published once in the London Gazette, and once in
the Times, Daily News, and Standard newspapers, in the two weeks next
following such registration. Let the petitioners be at liberty to dis-
continue the addition to their name of the words " and Eeduced " after
the expiration of fourteen days from the date of this order. — Disallow-
ance of claim of the liquidators of the Imperial Land Company to be
without prejudice to the right, if any, which the Imperial Land Com-
pany might establish against the Credit Foncier in certain litigation,
&c. — Directions for taxation of costs and payment by Credit Foncier
Company. — Liberty to petitioners to apply in chambers as to the
£225.
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688 STATUTORY JURISDICTION.
The Schedule above referred to. ,
Minute approved by tte Court : " The capital of the Credit Eonoier
of England, Limited and Eeduced, is £1,000,000, divided into 200,000
shares of £5 each. Be Credit Fancier of Englomd, L. E. 11 Bq. 356.
Eeduction of Capital — Special Eesolution — Petition.
" Any company limited by shares may, by special resolution, so far modify the
conditions contained in its memorandum of association, if authorized so to do by
its regulations as originally framed, or as altered by special resolution, as to reduce
its capital ; but no such resolution for reducing the capital of any company shall
come into operation until an order of the Court is registered by the Registrar of
Joint Stock Companies " : 30 & 31 Vict. c. 131, s. 9.
The term " special resolution" is defined by sect. 51 of the Companies Act, 1862.
" The company shall, after the date of the passing of any special resolution for
reducing its capital, add to its name, until such date as the Court may fix, the
words ' and Reduced,' as the last words in its name, and these words shall until
such date be deemed to be part of the name of the company within the meaning
of the principal Act" : 30 & 31 Vict. c. 131, s. 10.
A company which has passed a special resolution for reducing its capital may
apply to the Court by petition for an order confirming the reduction : 30 & 31
Vict. c. 131, s. 11.
Creditors opposing Eeduction — Creditors not coNSENTDsa.
" Where a company proposes to reduce its capital every creditor of the company
who at the date fixed by the Court is entitled lo any debt or claim which if that
date were the commencement of the winding-up of the company would be admis-
sible in proof against the company, shall be entitled to object to the proposed re-
duction and to be entered in the list of creditoi's who are so entitled to object " :
30 & 31 Vict. 0. 131, s. 13.
The Court shall settle a list of such creditors, and for that purpose shall ascer-
tain as far as possible, without requiring an application from any creditor, the
names of such creditors, and the nature and amount of their debts or claims, and
may publish notices fixing a certain day or days within which creditors of the
company who are not entered on the list are to claim to be' so entered, or to be
excluded from the right of objecting to the proposed reduction " : Ibid. ; see also
Rules 2-20 of Gen. Ord. March 1868, 'post, pp. 689-692.
Where the certificate of the chief clerlj had certified that the names of some of
the creditors of the company who were debenture holders were unknown to the
company, and none of them had claimed to be entered on the list, they were held
excluded under the 13th section from the right of objecting to the proposed reduc-
tion : Be Credit Fonder of England, L. R. 11 Eq. 356 ; Order, p. 687.
As to creditors who neither assent to nor dissent from a proposed reduction of
capital : see sect. 14, infra.
Notice was allowed to be given to certain debenture holders whose names were
not known to the company, by adding to the usual advertisement a notice to the
following effect : " And fin'ther take notice that by an order dated, &c., the Master
of the Rolls gave leave that the notice required by rule 9, &c., to be served on the
creditors of tlie above-named company should be served on the holders of the
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THE COMPANIES ACTS, 1862 and 186T. fiSS
debentures of the said company by tlie insertion of this . advertisement " : Be
Qemral Bank for Prcmotion of Agricultural and Public Works, 17 W. R. 304.
" Where a creditor whose name is entered on the list of creditors, and whose
debt or claim is not discharged or determined, does not consent to the proposed
reduction, the Court may, if it think fit, dispense with such consent on the com-
pany securing the payment of the debt or claim of such creditor, by setting apart
and appropriating, in such manner as the Court may direct, a sum of such
amount as is hereafter mentioned : (that is to say,)
(1.) If the full amount of the debt or claim of the creditor is admitted by the
company, or, tbough not admitted, is such as the company are willing
to set apart and appropriate, then the full amount of tbe debt or claim
shall be set apart and appropriated :
(2.) If the full amount of the debt or claim of the creditor is not admitted by
the company, and is not as such as the company are willing to set apart
and appropriate, or if the amount is contingent or not ascertained, then
the Court may, if it think fit, inquire into and adjudicate upon the
validity of such debt or claim, and the amount for which the company
may be lialble in respect thereof, in the same manner as if the company
were being wound up by the Court, and the amount fixed by the
Court on such inquiry and adjudication shall be set apart and appro-
priated" : 30 & 31 Vict. c. 131, s. 14.
Where creditors settled upon the list of the Chief Clerk, and whose debts were
secured, neither assented to nor dissented from the proposed reduction, they were
held not to be considered creditors " who do not assent " within the 14th section,
but were to be taken to have assented : Be Credit Fonder of England, L. K.
11 Eq. 356.
When a limited company reduces its capital a lessor is entitled to have a sum
impounded to answer future rent : Be Telegraph Construction Co, L. R. 10 Eq.
384; see also Be ffaytor Granite Co., L. II. 1 Ch. 77, reversing S. C, L. B.
1 Eq. 11 ; Borsey's Claim, L. R. 5 Eq. 561.
But are not entitled in respect of future rent to stop the administration of assets
amongst the creditors of the company : Borsey's Claim, supra ,• Be Telegraph
Construction Co., supra.
Petition — Peeliminaey Pkoceedisgs.
" Every petition for an order confirming a special resolution for reducing the
capital of a company, and all nofices, affidavits, and other proceedings under such
petition, shall be intituled in the matter of ' The Companies Act, 1867,' and of
the company in question " : Gen. Ord. March, 1868, rule 2.
"No such petition as mentioned in the 2nd rule of the Order shall be placed in
the list of petitions by the secretary of the Lord Chancellor or Master of the
Rolls, as the case may be, until after the expiration of eight clear days from the
filing of such certificate as is mentioned in the 14th rule of this Order": Gen.
Ord.°March, 1868, Rule 3.
" Where any such petition as last aforesaid has been presented, application may
be made ex parte by summons in Chambers to the judge to whose Court the
petition is attached for directions as to the proceedings to be taken for settling
the list of creditors entitled to object to the proposed' reduction, and the judge
may thereupon fix the date with reference to which the list of such creditors is to
made out, pursuant to the 13th section of the Companies Act, 1867 ; and may
2 Y
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690 STATUTORY JUBISDICTION.
either at the same time or afterwards, as he shall think fit, give such directions
as are mentioned in the 5th and 6th rules of this Order. The order upon such
summons may be in the Form No. 1 in the schedule hereto, with such variations
as the circumstances of the case may require " : Gren. Ord. March, 1868, rule 4.
Form of Order referred to in Bule 4.
Upon the application, &c., Let an inquiry be made what are the
debts, claims, and liabilities of or affecting the said company on the —
day of — . Let notice of the presentation of the said petition be inserted
in [the newspapers] on the — day of — , and [other times of insertion].
Let a list of the persons who are creditors of the company on the said
— day of — , and an oifice copy of the affidavit verifying the same, be
left at the chambers of the judge on or before the — day of — .
" Notice of the presentation of the petition shall be published at such times
and in such newspapers as the judge shall direct, so that the first insertion of
such notice be made not less than one calendar month before the day of the date
fixed, as mentioned in the 4tb rule of this Order ": Gen. Ord. March, 1868, rule 5.
List of Creditors.
" The company shall within such time as the judge shall direct file an affidavit
made by some officer of the company competent to make the same, verifying a
list containing the names and addresses of the creditors of the company at the
date fixed, as mentioned in the 4th rule of this Order, and the amounts due to
them respectively, and leave the said list and an office copy of such affidavit at
the chambers of the judge": Gren. Ord. March, 1868, rule 6.
" The person making such affidavit shall state therein his belief that such biU
is correct, and that there was not at the date so fixed any debt or claim which if
that date were the commencement of the winding-up of the company would be
admissible in proof against the company, except the debts set forth in such list,
and shall state his means of knowledge of the matters deposed to in such affi-
davit": Gen. Ord. March, 1868, rule 7.
Copies of the list containing the names and addresses of the creditors, and the
total amount due to them, &c., are to be kept at the registered office of the com-
pany, and at the offices of their solicitors and London agents (if any) for inspection
at any time during the ordinary hours of business : Rule 8, and Order of March
2, 1869.
Notice to Creditors.
" The company shall within seven days after the filing of such affidavit, or such
further time as the judge may allow, send to each creditor whose name is entered
in the said list a notice stating the amount of the proposed reduction of capital
and the amount of the debt for which such creditor is entered in the said list, and
the time (such time to be fixed by the judge) within which, if he claims to be a
creditor for a larger amount, he must send in his name and address, and the
particulars of his debt or claim, and the name and address of his solicitor (if any)
to the solicitor of the company: Gen. Ord. March, 1868, rule 9.
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THE COMPANIES ACTS, 1862 and 1867. 691
Notice of Lisr to be published and verified.
" Notice of the list of creditors shall after the filing of the affidavit mentioned in
the 6th of these rules be published at such times, and in such newspapers, as
the judge shall direct. Every such notice shall state the amount of the proposed
reduction of capital and the places where the aforesaid list of creditors may be
inspected, and the time within which creditors of the company who are not entered
on the said list and are desirous of being entered therein must send in their names
and addresses, and the particulars of their debts or claims, and the names and
addresses of their solicitors (if any) to the solicitor of the company :" Gen. Ord.
March, 1868, rule 10.
" The company shall within such time as the judge shall direct file an afiidavit
made by the person to whom the particulars of debts or claims are by such notices
as are mentioned in the 9th and 10th rules of this Order required to be sent in,
stating the result of such notices respectively, and verifying a list containing the
names and addresses of the persons (if any) who shall have sent in the particulars
of their debts or claims in pursuance of such notices respectively, and the
amounts of such debts or claims, and some competent ofiSoer of the company
shall give in such affidavit, and shall in such list distinguish which (if any) of
such debts and claims are wholly, or as to any and what part thereof, disputed by
the company," The list and office copy of the affidavit to be left in chambers :
Gen. Ord. March, 1868, rale 11.
Notice to prove Debt.
" If any debt or claim the particulars of which are so sent in shall not be ad-
mitted by the company at its full amount, then and in every such case, unless
the company are willing to set apart and appropriate as the judge shall direct the
full amount of such debt or claim, the company shall, if the judge so direct,
send to the creditor a notice that he is required to come in and prove such debt
or claim, or such part thereof as is not admitted by the company, by a day to be
therein named," &c. : Gen. Ord. March, 1868, rule 12.
Costs of Proof.
Such creditors as come in to prove their debts or claims as mentioned in the
12th rule are to be allowed their costs of proof against the company, and be
answerable for costs : Gen. Ord. March, 1868, rule 13.
Chief Clerk's Certificate.
" The result of the settlement of the list of cruditors shall bo stated in a certifi-
cate by the chief clerk, and such certificate shall state what debts or claims (if
any) have been disallowed, and shall distinguish the ^ebts or claims the full
amount of which the company are willing to set apart and appropriate, and the
debts or claims (if any) the amount of which has been fixed by inquiry and adju-
dication in manner provided by sect. 14 of the said Act, and the debts or claims
(if any) the full amount of which is not admitted by the company, nor such as
the company are willing to set apart and appropriate, and the amount of which
has not been fixed by inquiry and adjudication as aforesaid ; and shall shew which
of the creditors have consented in writing to the proposed reduction, and the
total amount of the debts due to them, and the total amount of the debts or
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692 STATUTORY JURISDICTION.
claims the payment of which has been secured in manner provided by the said
14th section, and the persons to or by whom the same are due or claimed ; but it
shall not be necessary to shew in such certificate the several amounts of the debts
or claims of any persons who have consented in writing to the proposed reduction,
or the payment of whose debts or claims has been secured as aforesaid :" Gren. Ord.
March, 1?68, rule 14, and Gen. Ord. March, 1869.
Hearing of Petition — Ordee.
After eight clear days from the filing of the certificate the petition may be
placed in the list of petitions upon a note from the chief clerk stating that the
certificate has been filed and become binding : Gen. Ord. March, 1868, rule 15.
Before the hearing of the petition notices stating the day on which the same is
appointed to be heard shall be published at such times and in such newspapers as
the judge shall direct : Gen. Ord. March, 1868, rule 16.
" Any creditor settled on the said list whose debt or claim has not before the
hearing of the petition been discharged or determined, or been secured in manner
provided by the 14th section of the said Act, and who has not before the hearing
signed a consent to the proposed reduction of the capital, may, if he thinks fit,
upon giving two clear days' notice to the solicitor of the company of his inten-
tion so to do, appear at the hearing of the petition and oppose the application " :
Gen. Ord. March, 1868, rule 17.
" Where a creditor who appears at the hearing under the last rule is a creditor
the full amount of whose debt or claim is not admitted by the company, and the
validity of such debt or claim has not been inquired into and adjudicated upon
under sect. 14 of the said Act, the costs of and occasioned by his appearance shall
be dealt with as to the Court shall seem just, but in all other cases a creditor
appearing under the last preceding rule shall be entitled to the costs of such
appearance unless the Court shall be of opinion that in the circumstances of the
particular case his costs ought not to be allowed " : Gen. Ord. March, 1868, rule 18.
" When the petition comes on to be heard the Court may, if it shall so think
fit, give such directions as may seem proper with reference to securing in manner
mentioned in sect. 14 of the said Act the payment of the debts or claims of any
creditors who do not consent to the proposed deduction ; and the further hearing
of the petition may, if the Court shall think fit, be adjourned for the purpose of
allowing any steps to be taken with reference to the securing in manner aforesaid
the payment of such debts or claims " : Gen. Ord. March, 1868, rule 19.
On the hearing of the petition the Court, if satisfied that with respect to every
creditor of the company who, under the provisions of this Act, is entitled to
object to the reduction, either his consent to the reduction has been obtained or
his debt or claim has been discharged, or has determined, or has been secured,
may make an order confirming the reduction on such terms and subject to such
conditions as it deems fit : 30 & 31 Vict. c. 131, s. 9.
" Where the Court makes an order confirming a reduction, such order shall
give directions in what manner, and in what newspapers, and at what times, notice
of the registration of the order and of such minute as mentioned in the 15th sec-
tion of the Act is to be published ; and is to fix the date until which the words
' and Reduced ' are to be deemed part of the name of the company, as mentioned
in the 10th section of the Act" : Gen. Ord. March, 1868, rule 20.
Three weeks from thg date of the order is a common period , to be fixed for the
discontinuance of the term " and Reduced" : He Sharpe, Stewart, & Co., L, R.
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THE COMPANIES ACTS, 1862 and 1867. 693
5 Eq. 155 ; Be Estate Go., L. R. 5 Ch. 407. But a fortnight has sometimes heen
considered sufBcient : Be Telegraph Construction Co., L. E. 10 Bq. 384, 389 ; Be
Credit Fonder Co., L. E. 11 Eq. 356.
Eegistration of Order ahd Minute.
The Eegistrar of Joint Stock Companies, upon the production to him of the
order confirming the reduction of capital, and the delivery to him of a copy of
the order, and of a minute (approved by the Court) shewing, with respect to the
capital of the company, as altered by the order, the amount of such capital, the
number of shares in which it is to be divided, and the amount of each share,
shall register the order and minute, and on the registration the special resolution
confirmed by the order so registered shall take effect.
Notice of such registration shall be published in such manner as the Court
may direct.
The registrar shall certify under his hand the registration of the order and
minute, and his certificate shall be conclusive evidence that all the requisitions
of the Act with respect to the reduction of capital have been complied with, and
that the capital of the company is such as is stated in the minute : 30 & 31 Vict,
c. 131, s. 15.
The minute is usually as follows : " The capital of the company Is divided
into — shares of £ — each :" Be Sharpe, Stewart, & Co., L. E. 5 Eq. 155 ; Be
CrMit Fimcier of England, L. E. 11 Eq. 356 ; Orders, ante, pp. 686, 687.
The Joint Stock Companies Aeeangement Act, 1870.
33 & 34 Vict. c. 104.
" Where any compromise or an-angement shall be proposed between a company
which is, at the time of the passing of this Act or afterwards, in the course of
being wound up, either voluntarily or by or under the supervision of the Court,
under the Companies Acts, 1862 and 1867, or either of them, and the creditors of
such company, or any class of such creditors, it shall be lawful for the Court in
addition to any other of its powers, on the application in a summary way of any
creditor or the liquidator, to order that a meeting of such creditors or class of
creditors shall be summoned in such manner as the Court shall direct ; and if a
majority in number representing three-fourths in value of such creditors or class
of creditors present either in person or by proxy at such meeting shall agree to
any arrangement or compromise, such arrangement or compromise shall, if
sanctioned by an order of the Court, be binding on all such Creditors or class of
creditors, as the case may be, and also on the liquidators and contributories of the
said company" : sect. 2.
For cases under this Act, see Albert Life Assurance Co., Law Eep. 6 Ch. 381 ;
Be Tunis Bailways Co., 30 L. T. 512; 31 L. T. 264; Be Western of Canada
Oil Co., W. N. (1874) 148, cited in Buckley, 2nd ed. 489.
" The word ' company' in this Act shall mean any company liable to be wound
up under ' The Companies Act, 1862 ' " : sect. 3.
" This Act shall be read and construed as part of the Companies Act, 1862 ; "
sect. 4.
ft
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CHAPTER XLIII.
THE CONFIRMATION OF SALES ACT.
26 & 26 Vict. c. 108.
Sale — Exception of Miner ah.
Let the petitioners — be at liberty, as trustees of the will of — in
the petition named, from time to time to sell and dispose of the lands
comprising the unsold real estate devised by the will of the said — ,
or any part thereof, with an exception or reservation of all or any of
the minerals under the same, and of the rights or powers of or inci-
dental to the working, getting, or carrying away of such minerals ;
and also to sell and dispose of all or any of the minerals under the said
lands, and such rights and powers as aforesaid, apart from the residue
of the said lands and minerals.
Powers of Sale and Exchange, &c.
"Every trustee and other person now or hereafter to become authorized to dis-
pose of land by way of sale, exchange, partition, or enfranchisement, may, unless
forbidden by the instrument creating the trust or power, so dispose of such land
with an exception or reservation of any minerals, and with or without rights and
powers of or incidental to the working, getting, orcarryingaway of such minerals,
or may (unless forbidden as aforesaid) dispose of by way of sale, exchange, or
partition, the minerals, with or without such rights or powers, separately from
the residue of the land ; and in either case without prejudice to any future exer-
cise of the authority with respect to the excepted minerals or (as the case may
be) the undisposed of land": 25 & 26 Vict. c. 108, s. 2.
" But this enactment shall not enable any such disposition as aforesaid without
the previous sanction of the Court of Chancery, to be obtained on petition in a
summary way of the trustee or other person authorized as aforesaid : which sanc-
tion once obtained shall extend to the enabling from time to time of any disposi-
tion within this enactment of any part or parts of the land comprised in the order
to be made on such petition, without the necessity of any further or other appli-
cation to the Court " : Ibid.
But where the power of sale was exercisable with the consent of the tenant for
life, service on the remainderman has been aispensed with : Re Pryse, L. B. 10
Eq. 531.
The Court will make an order authorizing the sale of land, reserving the
minerals, or of the minerals apart from the land, without reference to any par-
ticular sale: Be Willway,,32 L. J. (Ch.) 226 ; 1 N. E. 469.
Mortgagees are withifi the Act, and may have leave to sell under their power
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THE CONFIRMATION OP SALES ACT. 695
of sale, with a reservation of the minerals and incidental power of working thorn .
Be Beaumont's .Trusts, L. E. 12 Eq. 86 ; Be Wilkinson's Trusts, L. E. 13 Bq.
634.
Parties to Petition.
All the teneficiaries should either join in or be served with the petition : Be
Brown, 9 Jur. (N.S.) 349 ; 11 W. E. 19 ; Be Palmers Will, L. E. 10 Eq. 408.
But where the power of sale was exercisable with the consent of the tenant for
life, service on the remaindermen has been dispensed with : Be Pryse, L. E. 10
Eq. 531.
Where mortgagees apply for an order under the Act, it is not necessary that
subsequent incumbrancers should be served : Be Wilkinson's Trusts, L. E. 13 Eq.
634.
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CHAPTER XLIV.
JUDGMENT DEBTOES ACT.
27 & 28 Vict. c. 112.
Let the following inquiries be made : —
1. An inquiry what is due to the petitioner under or by virtue of
the judgment in the petition mentioned.
2. An inquiry what lands and property have been extended under
or by virtue of the writ of elegit in the petition mentioned, and what
are the nature and particulars of the interest of the respondent E. D.
in such lands and property, and of his title thereto.
3. An inquiry whether there are any, and, if any, what, liens, charges,
or incumbrances upon the said lands, or any and what part thereof,
and what are their priorities, and what is due on account thereof re-
spectively.— Adjourn further hearing of petition. Gardner v. London,
Chatham, and Dover By. Co., L. E. 2 Ch. 385.
Sale mthout Inquiries — Baihoay Company.
Tax the petitioners their costs of this petition and consequent there-
on, with liberty for them to add such costs to their debt of £368 17s. Id.
Let the close, piece, or parcel of pasture land of which the Calne Eailway
Company were found by the return to the inquisition taken on the
23rd of November, 1867, in pursuance of the writ of elegit issued at
the suit of the petitioners as in the petition mentioned, to be possessed,
&c., for the residue of a term of 1000 years, &c., and also the closes,
pieces, or parcels of land, &c., of which the said railway company were
found by the said return to be seised in their demesne as of fee, and
which have been actually delivered to the petitioners, with the timber
thereon, be sold to — for the sum of £ — , for all the interest therein of the
said company. — Let the company join in and execute a proper convey-
ance, &c., to be settled by the judge. Let the petitioners be at liberty
to receive the jjurchase-money and apply the same in discharge of the
said £368 17«. Id. interest and costs, lie Calnc Bailway, L. E. 9 Eq.
658.
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JUDGMENT DEBTORS ACT. 697
Dklivery of Land in Execution.
" No judgment, statute, or recogaizance to bo entered up after the passing of this
Act shall atl'ect any land (of whatever tenure) until such land shall have been
actually delivered in execution by virtue of a writ of elegit or other lawful autho-
rity, in pursuance of such judgment, statute, or recognizance " : sect. 1.
"In the construction of this Act the term "judgment" shall be taken to in-
clude registered decrees, coders of Courts of Equity and Bankruptcy, and other
orders having the operation of a judgment ; and the term " land " shall be taken
to include all hereditaments, corporeal or incorporeal, or any Interest therein ;
and the term "debtor" shall be taken to include husbands of married women,
assignees of bankrupts, committees of lunatics, and the heirs or devisees of de-
ceased persons '' : sect. 2.
Writs of execution are to be registered in manner prescribed by 23 & 24 Vict.
0. 38, s. 3.
Oedee foe Sale.
" Every creditor to whom any land of his debtor shall hay^ been actually de-
livered in execution by virtue of any such judgment, statute, or recognizance, and
whose writ or other process of execution shall be duly registered, shall be entitled
forthwith, or at any time afterwards while the registry of such writ or process
shall continue in force, to obtain from the Court of Chancery, upon petition in a
summary way, an order for the sale of his debtor's interest in such land, and
every such petition may be served upon the debtor only ; and thereupon the
Court shall direct all such inquiries to be made as to the nature and particulars
of the debtor's interest in such land, and his title thereto, as shall appear to be
necessary or proper " : sect. 4.
" And in making such inquiries, and generally in carrying into effect such
order for sale, the practice of the said Court with respect to sales of real estates of
deceased persons for the payment of debts shall he adopted and followed so far as
the same may be found conveniently applicable " : Ibid,
Where it is not clear that the debtor has any saleable interest the Court will
merely direct inquiries as to the debtor's interest : Re Bishop Waltham By. Co.,
14 W. R. 1008 ; L. E. 2 Ch. 382 ; Gardner v. Lmdon, Chatham, and Dover Ry.
Co., L. E. 2 Ch. 385 ; Order, p. 696.
But the surplus lands of a railway not required for the undertaking have been
sold under the Act without directing any preliminary inquiries : Be Calne By.
Co., L. R. 9 Eq. 658 ; Order, p. 696. See also Bull and Eomsea By. Co., L. E.
2 Eq. 262.
Equitable interests are within the Act. And an order of the Court, whether in
form for a writ of assistance or of sequestration or for a receiver, will be a de-
livery of execution within the statute : Eattm v. Eaywa/rd, L. R. 9 Ch. 229. See
also Be Gow'bridge By. Co., L. R. 5 Eq. 413 ; Quest v. Cowbridge By. Co., L. E.
6 Eq. 619 ; Mildred v. Austin, L. R. 8 Eq. 220 ; Be Duhe of Newcastle, L. R.
8 Eq. 700 ; Earl of Cork v. Bussell, L. E. 13 Bq. 210; Wells v. Kilpin, L. E.
18 Eq. 298.
Other Ceeditoes— Noiice of Sale.
" If it shall appear on making such inquiries that any other debt due on any
judgment, statute, or recognizance is a charge on such land, the creditor entitled
to the benefit of such charge (whether prior or subsequent to the charge of the
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698 STATUTORY JURISDICTION.
petitioner) shall be served with notice of the said order for sale, and shall after
such service be bound thereby, and shall be at liberty to attend the proceedings
under the same, and to have the benefit thereof; and the proceeds of such sale
shall be distributed among the persons who may be found entitled thereto, accord-
ing to their respective priorities " : sect. 5.
Pakties claiming undee Debtor.
" Every person claiming any interest in such land through or under the debtor,
by any means subsequent to the delivery of such land in execution as aforesaid,
shall be bound by every such order for sale, and by all the proceedings conse-
quent thereon " : sect. 7.
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CHAPTER XLV.
THE COUNTY COUETS ACTS, 1865 and 1867.
28 & 29 Vict. c. 99; 30 & 31 Vict. c. 142.
Jurisdiction.
The County Courts have authority in the following cases :
(1.) In all suits by creditors' legatees (whether specific, pecuniary, or resi-
duary), devisees (whether in trust or otherwise), heirs-at-law, or next of
kin, in which the personal or real, or personal and real estate against, or
for an account or administration of which, the demand may be made,
shall not exceed in amount or value the sum of £500 :
(2.) In all suits for the execution of trusts in which the trust estate or fund
shall not exceed in amount or value the sum of £500 :
(3.) In all suits for foreclosure or redemption, or for enforcing any charge or
lien, where the mortgage, charge, or lien shall not exceed in amount
the sum of £500 :
(4.) In all suits for specific performance of, or for the reforming, delivery up,
or cancelling of any agreement for the sale, purchase, or' lease of any
property, where, in the case of a sale or purchase, the purchase-money,
or in the case of a lease the value of the property, shall not exceed
£500:
(5.) In all proceedings under the Trustee Belief Acts, or under the Trustee
Acts, or under any of such Acts, in which the trust estate or fund to
which the proceedings relate shall not exceed in amount or value the
sum of £500:
(6.) In all proceedings relating to the maintenance or advancement of infants
in which the property of the infant shall not exceed in amount or value
the sum of £500 :
(7.) In all suite for the dissolution or winding up of any partnership in which
the whole property, stock, and credits of such partnership shall not
exceed in amount or value the sum of £500 :
(8.) In all proceedings for orders in the nature of injunctions, where the same
are requisite for granting relief in any matter in which jurisdiction is
given by this Act to the Cotmty Court, or for stay of proceedings at
\ law to recover any debt proveable under a decree for the administration
of an estate made by the Court to which the application for the order
to stay proceedings is made : 28 & 29 Vict, c. 99, s. 1 ; 30 & 31 Vict.
c. 142, ss. 9, 33.
The provisions contained in the 5th, 7th, 8th, and 10th sections of the County
Courts Act, 1867 (30 & 31 Vict. c. 142), apply to all actions commenced or
pending in the said ^^^j^jff^^^^l^^l^f^s^}^ ^"J' ^^^^^^ '^ ^^"S'^* ^^i"**
700 STATUTOEY JURISDICTION.
can be given in a County Court ; Judicature Act, 1873 (36 & 37 Vict. c. 66),
S.67.
Sect. 5 of the County Courts Act, 1867, applies to costs in the Superior Courts
where the pit recorers less than £20 in an action on contract or £10 on tort.
Sect. 7 applies to the cases where a judge of the Superior Court may order a cause
to be tried in a County Court. . Sect. 8 applies to the transfer of proceedings from
the Court of Chancery to County Courts. See infra, Tbansfbr.
The Acts conferring equitable jurisdiction on the County Courts do not prohibit
or restrict a pit from instituting proceedings in the Court of Chancery : Brown v.
Bye, L. E. 17 Eq. 343 ; TimrA v. Eme, L. E. 5 Ch. 274.
Teansfers to and from County Court.
Transfer to County Court.
Let this matter and cause no^y attached to the- Court of the Vice-
Chancellor — be transferred to the County Court of — , holden at — .
Transfer from County Court.
Let this cause be transferred from the County Court of — , holden
at — , to the Court of Vice-Chancellor — , and marked accordingly in
the book kept by the clerk of records and writs, and that the same
when so transferred be hereafter considered as a cause originally
marked for the Lord Chancellor, and attached to the Court of the Vice-
Chancellor — , and that the registrar of the said County Court do
transmit the plaint in Equity, No. — , and all proceedings in this
cause, to the office of the clerk of records and writs in Chanceiy. Let
all questions as to costs be reserved.
Metra/nsfer to the County Court.
Let this suit which was instituted in the County Court of — , and
which was transferred to this Court by the order dated, &o., be retrans-
ferred to the said County Court of — , and bo carried on and prose-
cuted in the said County Court notwithstanding the subject-matter
thereof exceeds the limit in point of amount to which the jurisdiction
of the County Courts is limited by the 28 & 29 Vict. c. 99.
Teansfee.
Any suit oi matter pending under the Act may, after hearing a summons
served upon the other party or parties, be transferred to the Court of Chancery
upon such terms, if any, as to security for costs, or otherwise, as the judge may
think fit: 28 & 29 Vict. c. 99, s. 3.
Where any suit or proceeding shall be depending in the High Court of Chan-
cery, which might have been commenced in a County Court, any of the parties
may apply at chambers to have the same transferred to the County Court, and
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THE COUNTY COURTS ACTS. 701
the judge has power to make an order for the transfer : 30 & 31 Vict. c. 142,
s. 8.
Special reasons must he given for the transfer asked : Picard v. Hine, 18 L. T.
(N.S.) 705 ; Maudeslsy v. Maudtshy, Ibid. 51 ; cited in Dan. 5th ed. 1973.
And the transfer heing a matter for the discretion of the judge, the Court of
Appeal will not interfere with it : Lindford v. Chtdgeon, L. E. 6 Ch. 359.
If during the progress of any suit or matter it shall be made to appear to the
Court that the subject-matter exceeds the limit in point of amount to which the
jurisdiction of the County Courts is limited, it shall not affect the validity of any
decree or order, or decree already made, but it shall be the duty of the Court to
direct the said suit or matter to be transferred to the Court of Chancery : 28 & 29
Vict. c. 99, s. 9.
But application may be made to the Vice-Chancellor at chambers authorizing
the suit or matter to be carried on and prosecuted in the County Court notwith-
standing such excess, &c. : Ibid.
Whenever an action or suit is brought in a County Court which the judge has
no jurisdiction to try, the judge shall order the cause to be struck out, and shall,
unless the parties consent to the Court having jurisdiction to try the same, have
power to award costs, &c. : 30 & 31 Vict. c. 142, s. 14.
This latter section does not repeal the 9th section of the 28 & 29 Vict. c. 99,
s. 9. Where it appears from the plaint that the County Court has no jurisdiction
the suit ought to be dismissed under the 14th section of the 30 & 31 Vict. c. 142 :
Thomson v. I7inn, L. E. 17 Eq. 415.
But where the want of jurisdiction appears only from evidence produced after
the institution of the suit the proceedings should be transferred to the Court of
Chancery under the 9th section of the 28 & 29 Vict. c. 99 : S. C.
Where an order of a County Court directed the transfer of a cause to the Court
of Chancery, and also directed the payment of costs, it was held that there was
no jurisdiction left to make the order for costs : Hares v. Lea, L. E. 10 Eq. 683.
Appeal feom County Court.
When it lies.
An appeal lies on any matter of law or equity, or on the admission or rejection
of any evidence. But no appeal lies against any decision of a County Court
given upon any question as to the value of any real or personal property for the
purpose of determining the question of the jurisdiction of the Court; nor to
appeal against a decision of the County Court, on the ground that the proceedings
should have been taken in any other County Court : 28 & 29 Vict. c. 99, s. 18 ;
see also 30 & 31 Vict. c. 142, s. 13.
All appeals from a County Court or from any other inferior Court which might
before the passing of the Judicature Act, 1873, have been brought to any Court
or judge whose jurisdiction is transferred to the High Court of Justice, may be
heard by Divisional Courts of the High Court of Justice : 36 & 37 Vict. c. 66,
s. 45.
The determination of such appeals by such Divisional Cotirts is to be final,
unless special leave to appeal to the Court of Appeal shall be given by the
Divisional Court by which any such appeal shall have been heard : Ibid.
The business of the Chancery Division assigned by the Judicature Act, 1873,
does not include County Court appeals : 36 & 37 Vict. c. 66, s. 34.
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702 STATUTORY JURISDICTION.
Appeal by Way of Motion.
" la any cause, suit, or proceeding other than a proceeding in bankruptcy, tried
or heard in any County Court, and in which any person aggrieved has a right of
appeal, it shall be lawful for any person aggrieved by the ruling, order, direction,
or decision of the judge at any time within eight days after the same shall have
have been made or given, to appeal against such ruling, order, direction, or deci-
sion by motion to the Court to which such appeal lies, instead of by special case,
such motion to be ex parte in the first instance, and to be granted on such terms
as to costs, security, or stay of proceedings as to the Court to which such motion
shall be made shall seem fit. And if the Court to which such appeal lies be
not then sitting, such motion may be made before any judge of a superior Court
sitting in chambers :" The County Courts Act, 1875 (38 & 39 Vict. c. 50), s. 6.
Appeal by Special OasBw
" Any jjarty dissatisfied with the judgment, order, or direction of the Court in
point of law, or upon the admission, or rejection of evidence, may before the rising
of the Court on the day on which judgment was pronounced, deliver to the Regis-
trar a statement in writing signed by him, his counsel, or solicitor, containing
the grounds of his dissatisfaction ; and in the event of no such statement being
delivered, the successful party may proceed on the judgment, unless the judge
shall otherwise order ; but the judge may direct proceedings to be taken on the
judgment, notwithstanding such statement has been delivered : provided that the
party so dissatisfied may appeal on grounds different from those contained in such
statement, and although he shall not have delivered any such stat«ment :" County
Court Orders, 1875, Order 29, rule 1.
" The appellant shall within three days next after the case has been signed and
sealed transmit the same with a copy thereof under the seal of the Court, by post
or otherwise, to the successful party that he has done so ; in default whereof the
successful party may proceed on the judgment as if no appeal had been made, and
shall, on the application to the Court, be entitled to such costs as he shall have
incurred in consequence of the appellant's proceedings ; provided that, instead of
proceeding on such judgment, the respondent, if he think fit, inay, within twenty-
eight clear days from the signing and sealing of the case, transmit it in the manner
prescribed, and give the like notice to the appellant of such transmission": County
Court Orders, 1875, Order 29, rule 8.
" The foregoing rules in this order shall not apply to appeals by motion, but
such appeals may be had under the provisions of section 6 of the County Courts
Act, 1875 " : County Court Orders, 1875, Order 29, rule 12.
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CHAPTER XLVI.
THE EAILWAT COMPANIES ACT, 1867.
30 & 31 Vict. c. 127.
Beceiver of Undertaking — Sect. 5.
Let E. D. N., the secretary of the Stafford and TJttoxeter Eailway
Company, upon fir.st giving security, be appointed to manage the
general undertaking of the said railway company as defined or referred
to in the Stafford and TJttoxeter Eailway Act, 1862, and the Stafford and
TJttoxeter Eailway Act, 1865, and the works and property comprised
in such general undertaking or connected therewith, and to receive
the tolls and sums of money accruing upon or out of the said general
undertaking. Let the said manager and receiver out of the money to
be received by him pay all expenses proper and necessary for the
maintenance, management, and working of the said general under-
taking.— Directions to pass accounts and pay balances into Court. —
Liberty to apply as to payments to be made by receiver. — Let the fol-
lowing account and inquiry be made : — 1. An account of what is due
to the petitioners for principal, interest, and costs upon their judgment
debt in the petition mentioned. 2. An inquiry whether there are any
other and what debts of the company, and whether the same or any
any which of them are incumbrances on the said undertaking, or the
tolls or money arising therefrom, or any and what parts thereof respec-
tively; and how the said incumbrances were respectively created, and
what are the rights and priorities of the persons for the time being
interested therein. — Adjourn further consideiation. — Liberty to apply.
Be Stafford and Uttoxeter By. Co., W. N. (1868), 113.
Peoteotion of Eolling Stock and Plant.
" The engines, tenders, carriages, trucks, machinery, tools, fittings, materials,
and effects constituting the rolling stock and plant used of provided by a com-
pany for the purposes of traffic on their railway, or of their stations or work-
shops, shall not, after their railway or any part is open for public traffic, be liable
to he taken in execution at law or in equity at any time after the passing of this
Act and before the 1st of September, 1868 (extended by 31 & 32 Vict. c. 79, s. 1
and 33 & 34 Vict. c. 103), where the judgment on which execution issues is re-
covered in an action on a contract entered into after the passing of this Act, or in
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704 STATDTOEY JURISDICTION.
an action not on a contract commenced after the passing of this Act" : 30 & 31
Vict. c. 127, s. 4.
" But the person who has recovered any such judgment may obtain the appoint-
ment of a receiver, and, if necessary, of a manager of the^ undertaking of the com-
pany, on application by petition in a summary way to the Court of Chancery in
England or in Ireland, according to the situation of the railway of the company ;
and all money received by such receiver or manager shall, after due provision for
the working expenses of the railway and other proper outgoings in respect of the
undertaking, be applied and distributed under the direction of the Court in pay-
ment of the debts of the company, and otherwise, according to the rights and
priorities of the persons for the time being interested therein " : Ibid.
The petition should be served on the company only ; but the Court may order
service on such parties as the Court thinks fit : Gen. Ord. Jan. 24 1868, mle 30 ;
see Beddgekrt Go. 19 W. B. 427.
Every order appointing a receiver or manager under the 4th section is to direct
such accounts and inquiries as the Court may think fit for ascertaining the debts
of the company and the rights and priorities of the persons interested in the
moneys to come to the hands of such receiver or manager : Gen. Ord. Jan. 24,
1868, rule 31.
Scheme foe Arrangement.
" Where a company are unable to meet their engagements with their creditors,
the directors may prepare a scheme of arrangement between their company and
their creditors (with or without provisions for settling and defining any rights of
shareholders of the company as among themselves, and for raising, if necessary,
additional share and loan capital, or either of them), and may file the same in the
Court of Chancery in England or in Ireland, according to the situation of the prin-
cipal office of the company ; with a declaration in wiiting under the common seal
of the company to the effect that the company are unable to meet their engage-
ments with their creditors ; and with an affidavit of the truth of such declaration
made by the chairman of the board of directors, and by the other directors, or the
major part in number of them, to the best of their respective judgment and
belief : 30 & 31 Vict. c. 127, s. 6.
Every scheme must be filed in the office of the clerk of records and writs,
and the declaration and affidavit required by sect. 6 must be annexed to such
scheme, and filed at the same time therewith : Gen. Ord. Jan. 24, 1868, rule 5.
" Notice of the filing of the scheme shall be published in the Gazette " : 30 & 31
Vict. c. 127, s. 8.
The notice must be signed by the solicitor of the company or his London
agent ; and must state whether the scheme contains any provisions for settling
and defining any rights of shareholders among themselves, or for raising any and
what amount of share or loan capital ; and must set forth the name and address
of the solicitor and London agent (if any) of the company: Gen. Ord. Jan. 24,
1868, rule 12.
" After the filing of the scheme the Court may, on the application of the com-
pany, on summons or motion iu a summary way, restrain any action against the
company on such terms as the Court thinks fit" : 30 & 31 Vict. o. 127, s. 7.
But no order for restraining an action against the company by reason of a
scheme having been filed is to be made, except upon an undertaking by the com-
pany to be answerable in such damages (if any) as the Court or judge at chambers
may think fit to award in the event of the plaintifl' being ultimately held entitled
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THE RAILWAY COMPANIES ACT, 1867. 705
to proceed with such action ; and on such further terms (if any) as the Court or
judge may think reasonable : Gen. Ord. Jan. 24, 1868, rule 14.
After, publication of notice of the filing of the scheme in the Gazette, "no exe-
cution, attachment, or other process against the property shall be available without
leave of the Court, to be obtained on summons or petition in a summary way " :
30 & 31 Viet. c. 127, s. 9.
And after publication the creditors of the company will not be allowed without
leave of the Court to issue execution upon a writ of sci.fa. obtained under sect. 36
of the Companies Clauses Act, 1845, against shareholders of the company : He
Devon and Somerset By. Co., L. R 6 Eq. 610 ; see also Re Teign Valley By. Co.,
17 W. E. 817.
" The scheme shall be deemed to be assented to by the holders of the mortgages
or bonds issued under the authority of the company's special Acts when it is as-
sented to in writing by three-fourths in value of the holders of such mortgages or
bonds, and shall be deemed to be assented to by holders of debenture stock of the
company when it is assented to in writing by three fourths in value of such stock " :
30 & 31 Vict. c. 127, s. 10.
" Where any rent-charge or other payment is charged on receipts of, or is pay-
able by the company in consideration of the purchase of the undertaking of
another company, the scheme shall be deemed to be assented to by the holders of
such rent-charge or other payment when it is assented to in writing by three-
fourths in value of such holders": 30 & 31 Vict. c. 127, s. 11.
" The scheme shaE be deemed to be assented to by the guaranteed or preference
shareholders of the company when it is assented to in writing as follows : — If
there is only one class of guaranteed or preference shareholders, then by three-
fourths in value of that class ; and if there are more classes of guaranteed or pre-
ference shareholders than one, then by three-fourths in value of each such class " :
30 & 31 Vict c. 127, s. 12.
" The scheme shall be deemed to be assented to by the ordinary shareholders
of the company when it is assented to at an extraordinary general meeting of the
company specially called for that purpose " j 30 & 31 Vict. o. 127, s. 13.
Where the company are lessees of a railway the scheme shall be deemed to be
assented to by the leasing company when it is assented to as follows : —
In writing by three-fourths in value of the holders of mortgage bonds and
debenture stock of the leasing company :
If there is only one class of guaranteed or preference shareholders of the
leasing company, then in writing by three-fourths in value of that class,
and if there are more classes of guaranteed or preference shareholders in
the leasing company than one, then in writing by three-fourths in value
of each such class :
By the ordinary shareholders of the leasing company at an extraordinary
general meeting of that company specially called for that purpose " : 30
& 31 Vict. c. 127, s. 14.
" Provided that the assent to the scheme of any class of holders of mortgages,
bonds, or debenture stock, or of any class of holders of a rent-charge or other pay-
ment as aforesaid, or of any class of guaranteed or preference shareholders, or of a
leasing company, shall not be requisite in case the scheme does not prejudicially
affect any right or interest of such class or company " ; 30 & 31 Vict. c. 127,
s. 15.
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706 STATUTORY JURISDICTION.
Petition to confirm Scheme.
" If at any time within three months after the filing of the scheme, or within stich
extended time as the Court from time to time thinks fit to allow, the directors of the
company consider the scheme to be assented to as by this Act required, they may
apply to the Court by petition in a summary way for confirmation of the scheme,
notice of aay such application when intended shall be published in the Gazette":
30 & 31 Vict. c. 127, s. 16.
" Every petition for the confirmation of a scheme shall be presented by the
directors or the major part of them. Such petition shall not set forth the scheme,
but only refer thereto ": Gen. Ord. Jan. 24, 1868, rule 15.
" The petitioners presenting such petition as aforesaid shall, for the pur-
poses of such petition, be treated as representing the company, and the company
shall not otherwise appear on the hearing of such petition " : Gen. Ord. Jan. 24,
1868, rule 16.
" When any petition to confirm a scheme is presented, the directors must
apply to the judge in chambers to appoint the day on which the same is to come
into the paper for hearing : such day not to be before the expiration of three
weeks from the time of such application : and must cause a notice of the presenta-
tion thereof to be inserted as follows ; (that is to say,) —
(1.) In the case of a company whose principal ofiioe is within ten miles from
the General Post Ofiice, in the London Gazette, and in such two London
daily morning newspapers as the judge in chambers shall direct :
(2.) In the case of any other company, in the London Gazette, and in such
two local newspapers circulating in the district where the principal
office of such company is situate as the judge in chambers shall direct :
Such notice shall state the day on which the scheme was filed, and the day on
which the petition was presented, and the day on which the same is directed to
come into the paper for hearing, and the name and address of the sohoitor and
London agent (if any) of the company " : Gen. Ord. Jan. 24, 1868, rule 17.
" The petition shall not come on to, be heard until at least fourteen clear days
after the insertion of such notice as aforesaid. Such notice shall at least once in
every entire week, reckoned from Sunday morning to Sunday evening,' which
shall have elapsed between the time of the first insertion thereof and the day on
which the petition is directed to come into the paper for hearing, be again inserted
in such two London or local newspapers as aforesaid on such day or days as the
judge in chambers shall direct " : Gen. Ord. Jan. 24, 1868, rule 18.
Appearances.
" Any creditor, shareholder, or other party whose rights or interests are
affected by the scheme, and who is desirous to be heard in opposition to the con-
firmation thereof, may at least two clear days before the day on which the
petition for confirmation is directed to come into the paper for hearing, enter an
appearance at the, office of the clerk of records and writs ; and in default of so
doing he will not be entitled to be heard unless by special leave of the Court ;
and having entered an appearance he will be deemed to have submitted himself to
the jurisdiction of the Court as to the payment of costs and otherwise " : Gen.
Ord. Jan. 24, 1868, rule 19.
" Any person so entering an appearance shall he deemed to have submitted
himself to the jurisdiction of the Court as to the payment of costs and otherwise " •
Gen. Ord. Jan. 24, 1868, rule 20.
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THE RAILWAY COMPANIES ACT, 1867. 707
Outside creditors have a right to appear on the petition to confirm the scheme
and to oppose the confirmation : Be Somerset and Dorset Ry, Co., 18 W. E. 337 ;
Bristol and North Somerset By. Co., L. E. 6 Bq. 448.
And where the scheme contains a clause seriously aflecting the rights of outside
creditors, the Court wiil require the assent in writing of every such outside
creditor before it confirms the scheme : Be Bristol and Ncyrth Somerset By.. Co.,
L. E. 6 Eq. 448.
Order on Petition.
" After hearing the directors, and any creditors, shareholders, or other parties,
whom the Court thinks entitled to be heard on the application, the Court, if
satisfied that the scheme has been within three months after the filing of it, or
such extended time (if any) as the Court has allowed, assented to as required by
this Act, and that no sufBcient objection to the scheme has been established, may
confirm the scheme " : 30 & 31 Vict. c. 127, s. 17.
Inrolment of Scheme.
" The scheme when confirmed shall be inroUed in the Court ; and thenceforth
the same shall be binding and efiectual to all intents ; and the provisions thereof
shall against and in favour of the company, and all parties assenting thereto or
bound thereby, have the like effect as if they had been enacted by Parliament " :
30 & 31 Vict. c. 127, s. 18.
" No scheme shall be deemed to have been confirmed by the Court of Chancery
until an order for confirming the same has been inrolled " : Gen. Ord. Jan. 24,
1868, rule 21.
"Notice of the confirmation and inrolment of the scheme shall he published in
the OazeUe " : 30 & 31 Vict. c. 127, s. 19.
Notice of Order.
" Notice of any order confirming a scheme, shall at least once' in every entire
week, reckoned from Sunday morning to Saturday evening, which shall elapse
between the pronouncing of such order and the expiration of thirty days from
the pronouncing thereof, be inserted in such two newspapers as • shall have been
appointed by the judge for the insertion of advertisements under the 17th rule " :
Gen. Ord. Jan. 24, 1868, rule 22.
Inrolment of Order confirming Scheme.
" No order for confirmino a scheme shall be Inrolled until the expiration of
thirty days from the day of the same having been pronounced, exclusive of vaca^
tions " : Gen. Ord. Jan. 24, 1868, rule 23.
"No caveat shall be entered to stay the inrolment of any order confirming a
scheme, but every such order may be inrolled at the expiration of thirty days
from the day of the same being pronounced, unless in the meantime a petition for
a rehearing shall have been presented, and an order for setting down such petition
obtained and served ; such thirty days to be exclusive of vacations " : Gen. Ord. >
Jan 24, 1862, rule 24.
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708 STATUTORY JURISDICTION.
Petition op Reheaeing.
" No petition for a rehearing, either before the same jvui'^e, or before the Lord
Chancelloi" or the Lords Justices, of the case on which any order for confirming, or
order refusing to confirm, a scheme has been made, shall, unless by special leave
of the Lord Chancellor or the Lords Justices, be presented after the expiration of
thirty days, exclusive of vacations, from the day on vphich such order was pro-
nounced, notwithstanding that such order may not have been inroUed " : Gen.
Ord. Jan. 24, 1868, rule 25.
" Where an order has been made for confirming a scheme, no person who has
neither entered an appearance as aforesaid, nor by virtue of such special leave as
aforesaid been heard in opposition to the confirmation of the scheme, is to be at
liberty to present a petition for rehearing before the same judge, or before the
Lord Chancellor or the Lords Justices, unless the Lord Chancellor or the Lords
Justices shall by special order, to be applied for by motion, on notice to the com-
pany, to be served on their solicitor, or at their principal office, give leave to such
person to present a petition for a rehearing " : Gen. Ord. Jan. 24, 1868, rule 26.
" Where any petition for a rehearing of a petition for confirmation of a scheme
is presented, the same certificate of counsel, the same subscription by the peti-
tioner or his solicitor with respect to costs, .and the same deposit are requisite as
are required for a rehearing when a decree has been made at the hearing of a
cause " : Gen. Ord. Jan. 24, 1868, rule 27,
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CHAPTER XLVII.
THE LIQUIDATION ACT, 1868.
31 & 32 Vict. c. 68.
Division of Assets in Specie — Scheme.
" If in any case of bankruptcy, aiTangement, or winding-up within this Act it
appears to the liquidators that it will be for the benefit of the estate in liquidation
that any part of the assets thereof should be divided in specie, or be otherwise
disposed of without sale, they may prepare and file in the Court of Chancery a
scheme in that behalf" : 31 & 32 Vict. c. 68, s. 6.
" Where such scheme relates to assets of a company which is being wound up
under the Companies Act, 1862, and any Act amending the same, by the Court
of Chancery, or under the supervision of the Court of Chancery, the scheme shall
be marked so as to be attached to the Court of the judge to whose Court the
matter of such winding-up is attached " : Gen. Ord. April, 1869, rule 3.
" Every such scheme shall be filed in the office of the clerks of records and writs,
and shall have indorsed thereon the name and address of the solicitor and London
agent (if any) of the liquidators, and also the address for service of such solicitor
in cases where an address for service is required by the General Order of the Court " :
Gen. Ord. April, 1869, rule 5.
" A scheme may in any case provide that any class of secured creditors shall
take in or towards discharge of their claims on the estate the securities held by
them at a value to be determined by the Court, or in such manner as the Court
shall direct" : 31 & 32 Vict. c. 68, s. 6. •
Where the debtor had executed an inspectorship deed under the Bankruptcy
Act, 1861, the ascertained value of the securities held by the secured creditors
was held applicable to the reduction of principal and interest due to the secured
creditors at the date of the inspectorship deed, and not to be applicable by the
creditors in payment, in the first place, of interest accrued on their debts since
the date of the inspectorship : Be Savin, L. E. 7 Ch. 760.
Affidavit.
" Except in cases where an affidavit verifying a lists of creditor shall already
have been filed, or a list of creditors shall have been made out under the direction
of the Court, the liquidators on the day on which the scheme is filed, or within
such further time as the judge shall allow, shall file in the office of the clerk of
records and writs an affidavit made by some person competent to make the same,
verifying a list containing the names and addresses of the creditors, and the
amounts due to them respectively so far as the same can be ascertained, and 'eave
the said list and an office copy of such affidavit at the chambers of the judge " :
Gen. Ord. April, 1869, rule 7.
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710 STATUTORY JURISDICTION.
Notice of filing Scheme.
" Copies of the scheme and copies of the list of creditors containing the total
amount due to them, but omitting the amounts due to them respectively, or (if
the judge shall so direct) complete copies of such list, shall be kept at the offices
of the solicitor of the liquidator and the London agent (if any) ; and any person
claiming to be interested as creditor or contributory may at any time during the
ordinary hours of business inspect and take extracts from such scheme and copy
list on payment of the sum of one shilling " : Gen. Ord. April, 1869, rule 8.
" The liquidators shall within seven days after the filing of the scheme, or
within such further time as the judge may allow, send to each creditor whose
cause is entered in the said list, or to such of them as the judge shall think fit,
and in cases of winding-up to such of the contributories as the judge shall think
fit, a notice of the filing of the scheme. Such notice shall state the time when
the scheme was filed, and the place or places where the scheme may be in-
spected, and copies thereof obtained, and shall be sent through the post in a
prepaid letter addressed to each of the persons to whom the same is to be sent at
his last-known address or place of abode " : Gen. Ord. April, 1869, rule 9.
" Notice of the filing of the scheme may also, if the judge shall think fit, after
the filing thereof, be published at such times and in such newspapers as the judge
shall direct. Every such notice shall contain such particulars as are mentioned
in the preceding rule " : Gen. Ord. April, 1869, rule 10.
Confirmation of Scheme — Petition.
" At such time after the filing of the scheme as General Orders under this Act
direct, the liquidators may apply to the Court in a summary way for confirmation
thereof" : 31 & 32 Vict. c. 68, s 8.
" After the expiration of one calendar month from the filing of the scheme, or
at such earlier time as the judge shall think fit, the liquidators may present a
petition for confirmation of the scheme. It shall not be necessary in such petition
to set forth the scheme, but it shall be sufiBcient to refer thereto": Gen. Ord.
April, 1869, rule 11.
'•When any petition to confirm any such scheme is presented, the liquidator
shall apply to the judge in chambers to appoint the day on which the same is to
come into the paper for hearing, such day not to be before the expiration of three
weeks from the time of such application, and shall cause a notice of such pre-
sentation' to be inserted in such two newspapers as the judge in chambers shall
direct. Such notice shall state the day on which the scheme was filed, and the
day on which the same is directed to come into the paper for hearing, and the
name and address of the solicitor and Loudon agent (if any) of the liquidator " :
Gen. Ord. April, 1869, rule 12.
" The petition shall not come on to be heard until at least fourteen clear days
after the first insertion of such notice as aforesaid. Such notice shall, at least,
once in every entire week, reckoned from Sunday morning till Saturday evening,
which shall have elapsed between the first insertion thereof and the day on which
such petition is directed to come into the paper for hearing, be again inserted in
such newspapers, as aforesaid, on such day or days as the judge in chambers shall
direct" : Gen. Ord. April, 1869, rule 13.
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THE LIQUIDATION ACT, 1868. 7H
Order confirming Scheme.
" After hearing the liquidators and any creditors, or other parties, whom the
Court thinlcs entitled to be heard on the application, the Court, if satisfied that
no sufBcient objection has been established to the scheme, may confirm the scheme,
with or without alteration or addition " : 31 & 32 Vict. c. 68, s. 9.
" Any creditor, contributory, or other person, whose rights or interests are
affected by such scheme, and who shall be desirous to be heard in opposition to
the confirmation thereof, shall at least two clear days before the day on which
the petition for confirmation is directed to come into the paper for hearing, enter
an appearance in the office of clerk of records and writs, and in default of so doing,
shall not be entitled to be heard unless by special leave of the Court " : Gen. Ord.
April, 1869, rule 14
"Any person so entering an appearance shall be deemed to have submitted
himself to the jurisdiction of the Court as to payment of costs, and otherwise " :
Gen. Ord. April, 1869, rule 15.
Inrolment of Order — Caveat.
" No order for confirming a scheme, whether with or without alteration or
addition, shall be inrolled until after the expiration of thirty days from the day
of the same having been pronounced, exclusive of vacations " : Gen. Ord. April,
1869, rule 16.
" No caveat shall be entered to stay the inrolment of any order for confirming a
scheme, with or without alterations or additions ; but every such order may be
inrolled after the expiration of thirty days from the day of the same being pro-
nounced, unless in the meantime a petition for a rehearing shall have been pre-
sented, and an order for setting down such petition obtained and served upon the
liquidators, such thirty days to be exclusive of vacations " : Gen. Ord. April,
1869, rule 17.
Petition for Eehearing.
" No petition for a rehearing, either before the same judge or before the Lord
Chancellor, or the Lords Justices, of the case on which any order confirming a
scheme, with or without alterations or additions, or order refusing to confirm a
scheme has been made, shall, unless by special leave of the Lord Chancellor or
the Lords -Justices, be presented after the expiration of thirty days, exclusive of
vacations, from the day on which such order was pronounced, notwithstanding
that such order may not have been inrolled" : Gen. Ord. April, 1869, rule 18.
" When an order has been made for confirming a scheme, with or without
alterations or additions, no person who neither has entered an appearance as afore-
said, nor has by virtue of such special leave been heard in opposition to the con-
firmation of the scheme, nor is the legal personal representative of a person who
has entered an appearance or been heard in opposition as aforesaid, shall be at
liberty to present a petition for rehearing before the same judge, or before the
Lord Chancellor or the Lords Justices, unless the Lord Chancellor or the Lords
Justices shall, by special order, to be applied for by motion on notice to the
liquidators, to be served on their solicitor or London agent, give leave to such
person to present a petition for a rehearing" : Gen. Ord. April, 1869, rule 19.
Chamber Orders.
" All orders made in chambers under the Liquidation Act, 1868, shall be drawn
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712 STATUTORY JURISDICTION.
up in chambers, unless specially directed to be drawn up by the registrar, and
shall be entered in the same manner and in the same office as other orders drawn
, up in chambers " : Gen. Ord. April, 1869, rule 20.
Effect of Scheme.
" The scheme as and when confirmed by the Court shall be binding and
effectual to all intents (any rule of law or equity, or course of procedure in any
Court notwithstanding), and the liquidators and debtors and others affected by
that scheme shall conform with the conditions thereof, and accordingly shall
(subject to the directions of the Court) execute and do all deeds and things neces-
sary or proper for transferring or vesting any portion of the assets of the estate in
accordance with the scheme " : 31 & 32 Vict. c. 68, s. 10.
Meetings of Ceeditoes.
The Court in determining on the confirmation of a scheme, and in all proceed-
ings and matters under or relating to a scheme, may have regard to the wishes of
the creditors, or of separate classes of creditors, as proved to the Court by any
sufficient evidence ; and the Court may, if it thinks it expedient for the purpose
of ascertaining their wishes, direct meetings of creditors, or classes of creditors, to
be summoned and lield, which meetings shall be re°:ulated in such manner as the
Court thinks fit (regard being always had to the value of the debts due to the
several creditors and to the nature and amount of their respective securities, if
any) and may appoint a person to act as chairman of any such meeting, and to
report the result thereof to the Court : 31 & 32 Vict. c. 68, s. 11.
FoRECLOSaEE BY NOTICE.
For facilitating the settlement of claims of secured creditors, the following pro-
visions shall have effect : —
(1.) In any case of bankruptcy, arrangement, or winding-up within this Act,
any person being, or claiming to be, a creditor on the estate in liquida-
tion, and holding or claiming a security, charge, or lien on the assets of
the estate, may without suit give notice in writing to the liquidators
arid debtor, stating his debt or demand, and the security, charge, or
lien which he holds or claims, and requiring payment of his debt or
demand within a time therein specified, not being less than six months
from the delivery of the notice.
(2.) Unless the liquidators within the time specified either comply with the
notice, or give to the creditor a counter-notice to the effect that they
dispute his right to the security, charge, or lien held or claimed by him,
then from and after the expiration of the time specified the creditor shall
be entitled and bound to retain and accept in full and final satisfaction
of the debt or demand stated in his notice, that portion of the assets on
which he holds or claims the security, charge, or lien, and all right and
title of the liquidators and debtor therein shall thenceforth be fore-
closed.
(3.) The liquidators and debtor shall, at the cost of the estate, execute and
do all deeds and things necessary or proper for vesting in the creditors
such portion of the assets as aforesaid, free from all right of redemption
by such liquidators or debtor : 31 & 32 Vict. c. 68, s. 12.
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CHAPTER XLVIII.
METEOPOLITAN BOAED OF WOEKS ACT, 1869.
32 & 33 Vict, c. 102.
Eeckiver.
" Any person or body corporate entitled to any consolidated stock, or to any
security granted by the Board, may, if default be made for a period of not less
than two months after demand in writing, in payment of dividend of such stock,
or of interest on any such security, apply to the Court of Chancery in a summary
way for the appointment of a receiver ; and the Court of Chancery may, if it
think fit, on such application, appoint a receiver on such terms and conditions
and with such powers as the Court thinks fit " : 32 & 33 Vict. c. 102, s. 40.
"Such person shall have the same power of collecting and receiving and
applying all moneys liable to be carried under this Act to the Consolidated Loans
Fund, and of assessing and raising the Metropolitan Consolidated Rate for the
purpose of obtaining such moneys as the Board or any officer thereof may have ;
and shall apply all such moneys, after payment of expenses and costs, under the
direction of the Court, for the purposes of and in conformity with this Act " :
Ibid.
" The Court may at any time discharge such receiver, and shall have full juris-
diction over such receiver, and the applicant, and all persons and bodies interested
in the acts of the receiver, in the same manner and to the same extent as if a
Siiit had been duly instituted for the administration of the affairs of the Board,
3,nd/i receiver had been appointed in such suit": Ibid.
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CHAPTER XLIX.
THE LIFE ASSUEANCE COMPANIES ACTS, 1870, 1871, 1872.
33 & 34 Vict. c. 61 ; 34 & 35 Vict. c. 58 ; 35 & 36 Vict. c. 41.
Payment of Deposit into Coukt.
" Every company established after the passing of this Act within the United
Kingdom, and every company established or to be established out of the United
Kingdom, which shall after the passing of tiiis Act commence to carry on the
business of life assurance within the United Kingdom, shall be required to
deposit the sum of £20,000 with the Accountant-General of the Court of Chan-
cery, to be invested by him in one of the securities usually accepted by th6
Court for the investment of funds placed from time to time under its adminis-
tration, the company electing the particular security and receiving the income
therefrom ; and the Registrar shall not issue a certificate of incorporation imless
such deposit shall have been made; and the Accountant-General shall return
such deposit to the company so soon as its life assurance fund accumulated out of
the premiums shall have amounted to £40,000" : 33 & 34 Vict. c. 61, s. 3.
Investment of Deposit.
" Every sum required by the Life Assurance Companies Act, 1870, to be
deposited with the Accountant-General of the Court of Chancery shall be paiii
into the Court of Chancery; and orders with respect to the payment of su(3j*
money into and out of Court, and the investment and return thereof, and thf
payments of the dividends and interest thereof, may be from time to time made,'
altered, and revoked by the lilje authority and in the like manner as ordered with •
respect to the payment into and out of Court, and the investment of other
money, and the application of the dividends and interest thereof" : 34 & 35 Vict.
c. 58, s. 1.
" The said deposit may be made by the subscribers of the memorandum of
association of the company, or any of them, in the name of the proposed com-
pany ; and such deposit, upon the incorporation of the company, shall be deemed
to have been made by and to be part of the assets of the company :
" The said deposit shall, imtil returned to the company, be deemed to form
part of the Life assurance fund of the company, and shall be subject to the pro-
visions of sect. 4 of the Life Assurance Companies Act, 1870, accordingly. The
Board of Trade may, from time to time, make, and when made, revoke, alter, or
add to rules with respect to the payment and repayment of the said deposit, the
investment of or dealing with the same, the deposit of stocks or securities in
lieu of money, and the payment of the interest or dividends from time to time
accruing due on such investment, stocks, or securities in respect of such deposit.
Any rules made in pursuance of this section shall have "<fect as if they were
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THE LIFE ASSURANCE COMPANIES ACTS. 715
jnacted in this Act, and shall be laid before Parliament within three weeks after
they are made if Parliament be then sitting, or if not, within three weeks after
the beginning of the next session of Parliament " : 35 & 36 Vict. c. 41, s. 1.
Amalgamation or Transfer of Companies.
" Where it is intended to amalgamate two or more companies, or to transfer
the life assurance business of one company to another, the directors of any one or
more of such companies may apply to the Court by petition to sanction the pro-
posed arrangement, notice of such application being published in the Gazette ;
and the Court, after hearing the directors and other persons whom it iconsiders
entitled to be heard upon the petition, may confirm the same if it is satisfied
that no sufBcient objection to the arrangement has been established :
" Before auy such application is made to the Court, a statement of the nature
of the amalgamation or transfer, as the case may be, together with an abstract
containing the material facts embodied in the agreement or deed under which
such amalgamation or transfer is proposed to be effected ; and copies of the actu-
arial or other reports upon which such agreement or deed is founded, shall be
forwarded to each policy-holder of both companies in case of amalgamation, or to
each policy-holder of the transferred company in case of transfer, by the same
being transmitted in manner provided by sect. 136 of the Companies Clauses
Consolidation Act, 1845, for the transmission to shareholders^ of notices not
requiring to be served personally ; and the agreement or deed under which such
amalgamation or transfer is effected shall be open for the inspection of the
policy-holders and shareholders at the ofEce or offices of the company or com-
panies for a period of fifteen days after the opening of the abstract herein
provided :
" The Court shall not sanction any amalgamation or transfer in any case in
which it appears to the Court that policy-holders representing one-tenth or more
of the total amount assured in any company which it is proposed to amalgamate,
or in any company the business of which it is proposed to transfer, dissent from
such amalgamation or transfer :
"No company sha,ll amalgamate with another, or transfer its business to
another, unless such amalgamation or transfer is confirmed by the Court in
accordance with this section :
" Provided always that this section shall not apply in any case in which the
business of any company which is sought to be amalgamated or transferred does
not comprise the business of life assurance " : 33 & 34 Vict. c. 61, s. 14.
Eeduction op Contracts.
" The Court, in the case of a company which has been proved to be insolvent,
may, if it thinks fit, reduce the amount of the contracts of the company upon
such terms and subject to such conditions as the Court thinks just, in place of
making a winding-up order " : 33 & 34 Vict. c. 22.
Winding-up of Subsidiaet Company, see p. 684,
Valuation of Annuities and Policies, see p. 685.
Eegolations as to Novation by Policy-holders, see p. 686.
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C 716
' CHAPTER L.
THE NATIONAL DEBT ACT, 1870.
33 & 34 Vict. c. 71.
Transfer and Payment to Claimant.
Upon the petition, &c., Let the petitioner E. S., pay to Her Majesty's
Attorney-General and the Commissioners for the Eediiction of the
National Deht their costs of this petition, and relating thereto respec-
tively [to be taxed, &c.]. And thereupon Let the Accountant-General, or
deputy Accountant-General, or secretary, or deputy or assistant-secre-
tary for the time being of the Governor and Company of the Bank of
England, transfer the sum of £ — Consolidated 3 per cent. Annuities
formerly standing in the name of J. S. and E. S., and afterwards
transferred to the account of the Commissioners for the Eeduction of
the National Debt, from the account of the said companies into the
name of the petitioner E. S. And Let the said Accountant-General or
secretary receive the dividends which accrued due on the said annuities
previously to the transfer to the said Commissioners, and which have
since accrued due, and to accrue thereon respectively, and on the
receipt thereof pay the same to the petitioner E. S. [If funds to he
brought into Court, add : The petitioners by their counsel undertaking
to transfer and pay the said stock and dividends into Court to the
credit of the cause A. v. B.]
Transfer to Trustee for Beneficiary.
Let the petitioner pay to the Attorney-General and the Commis-
sioners their costs, &c. And Let thereupon the Accountant-General
or secretary, &c., transfer, &c., to S. as trustee for the petitioner, the
administratrix of T. J. And Let the Accountant-General or Secretaiy,
&c., receive the dividends, &c., and pay them to S, as such trustee.
Let 8. be allowed to retain his costs as between solicitor and client out
of the dividends, and transfer the stock and pay the balance of the
dividends to the petitioner as such administratrix. Be Jameson, L. E.
19 Eq. 430.
If Inquiries directed.
UroN the petition, &e., and upon hearing counsel for the petitioner
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THE NATIONAL DEBT ACT. 717
and for — [the person representing the legal representatives], Let an
inquiry he made who is or are entitled to the sum of £ — formerly
standing in the names of — in the books of the Governor and Company
of the Bank of England, and afterwards transferred to the Commis-
sioners for the Eeduction of the National Debt, and to the dividends
due and to accrue due thereon.
Ukclaimed Dividends.
" All stock, no dividend whereon is claimed for ten years before tlie last day
on which a dividend thereon becomes payable (except where payment of divi-
dend has been restrained by a Court of Equity) shall be transferred in the books
of the Bank of England or of Ireland (as the case may be) to the National
Debt Commissioners ": sect. 51.
" Where stock is transferred under this part of this Act, all dividends accruing
thereon after the transfer shall be paid to the National Debt Commissioners,
and shall be from time to time invested by them in the purchase of other like
stock to be placed to their account of unclaimed dividends : .
" All such dividends, and the stock arising from the investment thereof, shall
be held by those Commissioners for the public, subject to the claims of the
parties entitled thereto ": sect. 54.
Ek-transper to Persons entitled.
The Governor or Deputy Governor of the Bank of England or of Ireland may
direct the Accountant-General or Deputy Accountant-General, or Secretary or
Deputy or Assistant Secretary of that Bank, to re-transfer any stock transferred
under any part of this Act to any person shewing his right thereto to the satis-
faction of the Governor or Deputy Governor, and to pay the dividends due
thereon as if the same had not been transferred or paid to the National Debt
Commissioners :
But in case the Governor or Deputy Governor is not satisfied of the right of
any person claiming to be entitled to any such stock or dividends, the claimant
may, by petition, in a summary way, state and verify his claim to the Court of
Chancery : sect. 55.
Where the stock is iu the name of a trustee, the re-transfer will be ordered to
be made, not to the beneficiary, but to the trustee : Me Jameson, L. E. 19 Eq.
430 ; Order, p. 716.
If the fund claimed is to be dealt with in a cause, the order should not direct a
carrying over, but must direct payment to the petitioners upon their undertaking
to transfer it into Court: Bushworih v. Walden, 18 W. E..204.
Where there are different claimants to the fund the Court will direct inquiries
as to the parties entitled' : Ex parte Earn, 3 My. & Cr. 25 ; Re JBishton (L. C),
6 W. K. 289 ; Eunt v. Peacock, 12 Jur. 154.
The fund will not be paid to the legal owner in the absence of the persons
beneficially interested: Ex parte Bam, 3 My. & Cr. 25.'
And it will not be paid out in the absence of the legal owner : Be Ashmead,
L.R. 8Ch. 113.
Where a claimant establishes his claim, he has no right to any accumulations
arising from the investment of the dividends : S. C.
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718 STATUTOBT JURISDICTION.
Service of Petition — Order — Costs,
" The petition shall be served on Her Majesty's Attorney-General and on the
National Debt Commissioners, and the Court shall make such order thereon
(either for re'-transfer of the stock to which the petition relates and payment of
the dividends accrued thereon or otherwise), and touching the costs of the appli-
cation, as to the Court seems just :
" All costs and expenses incurred by or on behalf of the Attorney-General, or
the National Debt Commissioners, in resisting or appearing on any such petition,
if not ordered by the Court to be paid out of the stock and dividends thereby
claimed, shall be paid by the National Debt Commissioners out of unclaimed
dividends :
" Where any re- transfer or payment is made to any such claimant, either with
or without the authority of the Court, the Bank of England or of Ireland (as
the case requires) shall give notice thereof to the National Debt Commissioners,
within three days after making the same ": sect. 55.
The costs of the Attorney-General and Commissioners are generally directed
to be paid by the petitioner, and to be taxed as between party and party : Re
Holland, 8 Jur. 253.
Ebsoinding Order.
" At any time before re-transfer of stock or payment of dividend as aforesaid
to a claimant, any person may apply to the Court of Chancery, by motion or
petition, to rescind or vary any order made for re-transfer or payment thereof":
sect. 56.
Sboond Claimant.
" Where any stock or dividends having been re-transferred or paid as aforesaid
to a claimant by either bank, is or are afterwards claimed by another person, the
bank and their officers shall not be responsible for the same to such other
claimant, but he may have recourse against the person to whom the re-transfer
or payment was made ": sect. 59.
" Provided that if, in any case a new claimant establishes his title to any stock
or dividends re-transferred or paid to a former claimant, and is unable to obtain
transfer or payment thereof from the former claimant, the Court of Chancery
shall, on application by petition by the new claimant, verified as the Court re-
quires, order the National Debt Commissioners to transfer to him such sum in
stock, and to pay to him such sum in money for dividend as the Court thinks
just : such transfer shall be made from stock transferred to the National Debt
Commissioners under this part of this Act ; and such money for dividend shall
be paid from dividends received by those Commissioners on stock so transferred,
or the accumulations thereof, or from the sale of stock purchased with such
dividends or accumulations, or from other money at their disposal ": sect. 60.
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( 719 )
CHAPTER LI.
THE LAND TRANSFEE ACT, 1875.
38 & 39 Vict. o. 87.
PART I.
Entry of Land on Eegister of Title.
(1.) Freehold Land.
" A LAND KESISTET stall be established, and on and after tbe commencement of
this Act the following persons ; (that is to say,)
(1.) Any person who has contracted to buy for his own benefit an estate in fee
simple in land, whether subject or not to incumbrances ; and
(2.) Any person entitled for his own benefit at law or in equity to an estate in
fee simple in land, whether subject or not to incumbrances ; and
(3.) Any person capable of disposing for his own benefit by way of sale
of an estate in fee simple in land, whether subject or not to incum-
brances,
may apply to the registrar under this Act to be registered, or to have registered
in his stead any nominee or nominees not exceeding the prescribed number, as
proprietor or proprietors of such freehold land with an absolute title or with a
possessory title only : Provided that in the case of land contracted to be bought,
the vendor consents to the application '' : sect. 5.
" Where an absolute title is required the applicant or his nominee shall not
be registered as proprietor of the fee simple until and unless the title is approved
by the registrar."
" Where a possessory title only is required, the applicant or his nominee may
be registered as proprietor of the fee simple on giving such evidence of title and
serving such notices, if any, as may for the time being be prescribed " : sect. 6.
" The first registration of any person as proprietor of freehold land (in this Act
referred to as first registered proprietor), with an absolute title, shall vest in the
person so registered an estate in fee simple in such land, together with all rights,
privileges, and appurtenances belonging or appurtenant thereto, subject as
follows : *
(1.) To the incumbrances, if any, entered on the register ; and
(2.) Unless, under the provisions of this Act, the' contrary is expressed on the
register, to such liabilities, rights, and interests, if any, as are by this Act
declared not to be incumbrances ; and
(3.) Where such first proprietor is not entitled for his own benefit to the land
registered as between himself and any persons claiming under him, to
any unregistered estates, rights, interests, or equities to which such
persons may be entitled,
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720 STATUTOEY JURISDICTION-.
but free from all other estates and interests whatsoever, including estates and
interests of Her Majesty, her heirs and successors " : sect. 7.
" The registration of any person as first registered proprietor of freehold land
with a possessory title only shall not affect or prejudice the enforcement of any
estate, right, or interest adverse to or in derogation of the title of such first
registered proprietor, and subsisting or capable of arising at the time of registra-
tion of such proprietor ; but, save as aforesaid, shall have the same effect as regis-
tration of a person with an absolute title :" sect. 8.,
"Where an absolute title is required, and on the examination of the title it
appears to the registrar that the title can be established only for a limited period,
or subject to certain reservations, the registrar may, on the application of the
party applying to be registered, by an entry made in the register, except from the
effiect of registration any estate, right, or interest arising before a specified date,
or arising under a specified instrument or otherwise particularly described in the
register, and a title registered subject to such excepted estate, right, or interest
shall be called a qualified title, and the registration of a person as first registered
proprietor of land with a qualified title shall have the same effect as the registra-
tion of such person with an absolute title, save that registration with a qualified
title shall not affect or prejudice the enforcement of any estate, right, or interest
appearing by the register to be excepted " : sect. 9.
" On the entry of the name of the first registered proprietor of freehold land on
the register, the registrar shall, if required by such proprietor, deliver to him a
certificate, in this Act called a land certificate, in the prescribed form ; the certi-
ficate shall state whether the title of the proprietor therein mentioned is absolute,
qualified, or possessory " ; sect. 10.
(2,) Leasehold Land.
" A separate register shall be kept of leasehold land, and on and after the com-
mencement of this Act any of the following persons ; that is to say,
(1.) Any person who has contracted to buy for his own benefit leasehold land
held under a lease for a life or lives, or determinable on a life or lives, or
for a term of years of which more than twenty-one are unexpired
whether subject or not to incumbrances ; and
(2.) Any person entitled for his own benefit, at law or in equity, to leasehold
land held under any such lease as Is described in this section, whether
subject or not to incumbrances ; and
(3.) Any person capable of disposing for his own benefit by way of sale of
leasehold land held under any such lease as is described in this section,
whether subject or not to incumbrances ;
may apply to the registrar to be registered, or to have registered in his stead any
nominee or nominees not exceeding the prescribed number, as proprietor or pro-
prietors of such leasehold land, with the addition where the lease under which
the land is held is derived immediately out of freehold land, and the applicant is
able to submit for examination the title of the lessor, of a declaration of the title
of the lessor to grant the lease under which the land is held :
Provided, —
That in the case of leasehold land contracted to be bought, the vendor con-
Konts to the application.
" Every applicant for registration of leasehold land shall deposit with the regis-
trar the lease of the land in respect of which the application is made, or if such lease
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THE LAND TRANSFER ACT, 1875. 721
is proved to the satisfaction of the registrar to be lost, a copy of such lease or of a
counterpart thereof, verified to the satisfaction of the registrar ; and such lease or
attested copy is in this Act referred to as the registered lease."
" Leasehold land held under a lease containing an absolute prohibition against
alienation, shall not be registered in pursuance of this Act ; and leasehold land
held under a lease containing a prohibition against alienation without the license
of some other person, shall not be registered under this Act until and unless pro-
vision is made in the prescribed manner for preventing alienation without such
license by entry on the register of a restriction to that effect, or otherwise " :
sect. 11. See Land Transfer Act Rules, rule 34.
" An applicant or his nominee shall not be registered as proprietor of leasehold
land until and unless the title to such land is approved by the registrar ; and
further, if he apply to be registered as proprietor of leasehold land with a declara-
tion of the title of the lessor to grant the lease under which the land is held,
imtil and unless the lessor, after an examination of his title by the registrar, is
declared to have had an absolute or qualified title to grant the lease under which
the land is held " : sect. 12, See Land Transfer Act Rules, rule 13.
" The registration under this Act of any person as first registered proprietor
of leasehold land with a declaration that the lessor had an absolute title to grant
the lease under which the land is held shall be deemed to vest in such person the
possession of the land comprised in the registered lease relating to such land for
all the leasehold estate therein described, with all implied or expressed rights,
privileges, and appurtenances attached to such estate, but subject as follows : —
(1.) To all implied and express covenants, obligations, and liabilities incident
to such leasehold estate ; and
(2.) To the incumbrances (if any) entered on the register ; and ,
(3.) Unless the contrary is expressed on the register, to such liabilities, rights,
and interests as affect the leasehold estate and are by this Act declared
not to be incumbrances in the case of registered freehold land ; and
(4.) Where such first proprietor is not entitled for his own benefit to the land
registered as between himself and any persons claiming under him, to
any unregistered estates, rights, interests, or equities to which such
persons may be entitled,
but free from all other estates and interests whatsoever, including estates and
interests of Her Majesty, her heirs and successor " : sect. 13.
" The registration of any person under this Act as first registered proprietor of
leasehold land without a declaration of the title of the lessor shall not affect or
prejudice the enforcement of any estate, right, or interest affecting or in deroga-
tion of the title of the lessor to gr.ant the lease under which the land is held ;
but, save as aforesaid, shall have the same effect as the registration of any person
inider this Act as first registered proprietor of leasehold land with a declaration
that the lessor had an absolute title to grant the lease under which the land is
held": sect. 14.
" Where an absolute title is required, and on the examination of the title of
any lessor by the registrar it appears to him that the title, of such lessor to grant
the lease under which the land is held can be established only for a limited period
or subject to certain reservations, the registrar may, by an entry made in the
register, except from the effect of registration any estate, right, or interest arising
be°bre a specified date or arising under a specified instrumentj or otherwise par-
ticularly described "in the registor; and a title of a lessor registered subject to
such excepted estate, right, or interest is in this Act referred to as a quahfied
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722 STATUTORY JURISDICTION.
title ; and the registration of a person as first registered proprietor of leasehold
land with a declaration that the lessor had a qualified title to grant the lease
under which the land is held shall have the same effect as the registration of such
person with a declaration that the lessor had an ahsolute title to grant the lease
under which the land is held, save that registration with the declaration of a
qualified title shall not affect or prejudice the enforcement of any right or
interest appearing by the register to be excepted " : sect. 15.
" On the entry of the name of the first registered proprietor of leasehold land
on the register, the registrar shall, if required by the proprietor, deliver to him a
copy of the registered lease, in this Act called an office copy, authenticated in the
prescribed manner, and there shall be indorsed thereon a statement whether any
declaration, absolute or qualified, as to the title of the lessor has been made, and
any other particulars relating to such lease entered in the register " : sect. 16.
Applications foe Eegistkation.
[See Land Transfer Act Eules, rules 1, 2 ]
Description.
[See Land Transfer Act Enles, rule 3.]
Abatement op Proceedings.
" In the case of death or transmission or change of interest pending registratiollv
the proceedings therein shall not abate, but shall, subject to the provisions of the
Act and of these rules, be available to such person as the registrar on application,
having regard to the rights of the several persons interested in the land, may
direct, if such person think proper to adopt the same " : Land Transfer Act
Rules, rule 5.
PossESsoRT Title.
Application for Begistration with [See Land Transfer Act Eules, rule 6].
Absolute Title and Leasehold Land.
Additions to and Verification of Description [See Land Transfer Act
Eules, rule 7].
Abstracts and Proofs [See Land Transfer Act Eules, rule 8].
Advertisement and Notices of Appliealion [See Land Transfer Act Eules,
rule 10].
Objections [See Land Transfer Act Eules, rule 11].
Statement of Title [See Land Transfer Act Eules, rule 12].
Hearing cf Objection [See Land Transfer Act Eules, rule 13].,
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THE LAND TEANSPER ACT, 1875. 723
Feeehold and Leasehold Land.
Examination of Title by Begiatrar.
" The examination by the registrar of any title under this Act shall be con-
ducted in the prescribed manner, provided that —
(1.) Due notice shall be given, where the giving of such notice is prescribed,
and sufficient /Opportunity be afforded, to any persons desirous of
objecting to come in and state their objections to the registrar ; and
(2.) The registrar shall have jurisdiction to hear and determine any such objec-
tions, subject to an appeal to the Court in the prescribed manner and on
the prescribed conditions ; and
(3.) If the registrar, upon the examination of any title, is of opinion that the
title is open to objection, but is nevertheless a title the holding under
which will not be disturbed, he may approve of such title, or may
require the applicant to apply to the Court, upon a statemeUt signed by
the registrar, for its sanction to the registration ; and
(4.) The registrar may accept as evidence recitals, statements, and descriptions
of facts, matters, and parties in deeds, instruments, or statutory decla-
rations not less than twenty years old " : sect. 17.
The registrar may refer the title either to one of the examiners under the Land .
Registry Act, or to one of the conveyancing counsel of the Chancery Division of
the High Court : see Land Transfer Act Rules, rule 9.
Liabilities, Eights, &c.
All registered land shall, unless, under the provisions of this Act, the contrary
is expressed on the register, be deemed to be subject to such of the liabilities,
rights, and interests enumerated in sect. 18 as may be for the time being subsisting);
in reference thereto, and such liabilities, rights, and interests shall not be deemed
incumbrances within the meaning of the Act.
DiSCHAEGE OF InCCTMBEANCE.
" Where upon the first registration of any freehold or leasehold land, notice of
an incumbrance affecting such land has been entered on the register, the registrar
shall, on proof to his satisfaction of the discharge of such incumbrance, notify
in the prescribed manner on the register by cancelling the original entry or
otherwise the cessation of such incumbrance " : sect. 19. See Land Transfer
Act Rules, rule 27.
Deteemination of Lease.
" The re<Tstrar shall, on proof to his satisfaction of the determination of any
lease of registered leasehold land, notify in the prescribed manner on the register
the determination of such lease": sect. 20. See Land Transfer Act Rules,
rule 27.
Adveese Possession.
" A title to any land adverse to or in derogation of the title of the registered
proprietor shall not be acquired by any length of possession ; but this section
shall not prejudice, as againSf any person registered as first proprietor of land
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724 STATUTORY, JURISDICTION.
with a possessory title only, any adverse plaim in respect of length of possession
of any other person who was in possession of such land at the time when the
registration of such first proprietor took place " : sect. 21.
PART II.
■Registered Dealings with Eegisteeed Land.
Mortgage of Registered Land.
" Every registered proprietor of any freehold or leasehold land may in the pre-
scribed manner charge such land with the payment at an appointed time of any
principal sum of money either with or without interest, and with or without a
power of sale to be exercised at or after a time appointed. The charge shall be
completed by the registrar entering on the register," &c. : sect. 22.
The instrument of charge under this section is to be left in the office, and the
execution by the registered proprietor attested by a solicitor and duly verified :
Land Transfer Act Rules, rule 20.
" Where a registered charge is created on any land there shall be implied on
the part of the person being registered proprietor of such land at the time of the
creation of the charge, his heirs, executors, and administrators, unless there be an
entry on the register negativing such implication, a covenant with the registered
proprietor for the time being of the charge to pay the principal sum charged, and
interest, if any, thereon, at the appointed time and, rate ; also a covenant, if the
principal sum or any part thereof is unpaid at the appointed time, to pay interest
halfryearly at the appointed rate on so much of the principal sum as for the time
being remains unpaid " : sect. 23.
" Where a registered charge is created on any leasehold land there shall be im-
plied on the part of the person being registered proprietor of such land at the time
of the creation of the charge, his heirs, executors, and administrators, unless there
be an entry on the register negativing such implication, a covenant with the re-
gistered proprietor for the time being of the charge, that the person beiug regis-
tered proprietor of such land at the time of the creation of the charge, his
executors, administrators, and assigns, will pay, perform, and observe the reiit,
covenants, and conditions by and in the registered lease reserved and contained,
and on the part of the lessee to be paid, performed, and observed, and will keep
the proprietor of the charge, his heirs, executors, and administrators, indemnified
against all actions, suits, expenses, and claims, on account of the non-payment of
the said rent, or any part thereof, or the breach of the said covenants or condi-
tions, or any of them " : sect. 24. See Land Transfer Act Rules, rule 20.
Eight of Entry of Proprietor of Charge.
" Subject to any entry to the contrary on the register, the registered proprietor
of a registered charge may, for the purpose of obtaining satisfaction .of any
moneys due to him under the charge, at any timeduring the continuance of his
charge, enter upon the land charged, or aiiy part thereof, or into the receipt of
the rents arid profits thereof, subject nevertheless to the right of any persons ap-
pearing on the register to be prior incumbrancers, and to the liability attached to
a miortgagce in possession " : sect. 25. See Land Transfer Act Rules, rule 20.
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THE LAND TEANSPER ACT, 1875. 725
EiOHT OF Foreclosure of Proprietor of Charge.
" Subject to any entry to the contrary on the register, the registered proprietor
of a registered charge may enforce a foreclosure or sale of the land charged, in
the same manner and under the same circumstances in and under which he might
enforce the same if the land had been transferred to him by way of mortgage,
subject to a proviso for redemption on payment of the money named at the
appointed time " .: sect. 26. See Land Transfer Act Rules, rule 20.
Eight of Sale by Proprietor of Charge.
" Subject to any entry to the contrary on the register, the registered proprie-
tor of a registered charge with a power of sale may, at any time after the expira-
tion of the appointed time, sell and transfer the land on which he has a registered
charge, or any part thereof, in the same manner as if he were the registered pro-
prietor of such land " : sect. 27. See Land Transfer Act Rules, rule 20.
Priorities of Charges.
" Subject to any entry to the contrary on the register, registered charges on the
same land shall as between themselves rank according to the order in which they
are entered on the register, and not according to the order in which they are
created " : sect. 28. See Land Transfer Act Rules, rule 20.
Cancelling of Charges.
"The registrar shall, on the requisition of the registered proprietor of any
charge, or on due proof of the satisfaction thereof, notify on the register in the
prescribed manner by cancelling the original entry or otherwise the cessation of
the charge, and thereupon the charge shall be deemed to have ceased :" sect. 28.
See Lands Transfer Act Rules, rule 22.
Transfer of Freehold Land.
Every registered proprietor of freehold land may, in the prescribed manner,
transfer such land or any part thereof. The transfer shall be completed by the
registrar entering on the register, &o., and upon completion of the registration of
the transferee the registrar shall, if required, deliver to him a land certificate, &c. :
sect. 29. See Land Transfer Act Rules, rules 23, 33.
Estate of Transferees of Freeholds.
" A transfer for valuable consideration of freehold land registered with an abso-
lute title shall, when registered, confer on the transferee an estate in fee simple
in the land transferred, together with all rights, privileges, and appurtenances
belonging or appurtenant thereto, subject as follows :
(1.) To the incumbrances, if any, entered on the register ; and
(2.) Uiiless the contrary is expressed on the register, to such liabilities, rights,
and interests, if any, as are by this Act declared not to be incumbrances,
but free from all other estates and interests whatsoever, including estates and
interests of Her Majesty, her heirs and successors " : sect. 30.
" \ transfer for valuable, consideration of freehold land registered with a quali-
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726 STATUTOBY JUEISDICEION.
fied title shall, when registered, have the same effect as a transfer for valuable
consideration of the same land registered with an absolute title, save that such
transfer shall not affect or prejudice the enforcement of any right or interest
appearing by the register to be excepted " : sect. 31.
" A transfer for valuable consideration of freehold land registered with a pos-
sessory title shall not affect or prejudice the enforcement of any right or interest
adverse to or in derogation of the title of the first registered proprietor, and sub-
sisting or capable of arising at the time of the registration of such proprietor ; but,
save as aforesaid, shall when registered have the same effect as a transfer for
valuable consideration of the same land registered with an absolute title":
sect. 32.
" A transfer of freehold land made without Valuable consideration shall, so far as
the transferee is concerned, be subject to any unregistered estates, rights,
interests, or equities subject to which the transferor held the same, but, save as
aforesaid, shall, when registered, in all respects, and in particular as respects any
registered dealings on the part of the transferee, have the same effect as a transfer
of the same land for valuable consideration " : sect. 33.
TeaUsfer op Leasehold Land.
" Every registered proprietor of leasehold land may, in the prescribed manner,
transfer the whole of his estate in such land or in any part thereof. The transfer
shall be completed by the registrar entering on the register the transferee as pro-
prietor of the land transferred, but until such entry is made the transferor shall
be deemed to remain proprietor of the land.
" Upon completion of the registration of the transferee, if the transfer includes
the whole of the land comprised in the registered lease relating to such land, the
transferee shall be entitled to the ofSce copy of the registered lease ; but if a part
only is transferred, the registrar shall, if required, according to any agreement
that may have been entered into between the transferor and transferee, deliver to
the one the ofiSce copy of the registered lease and to the other a fresh office copy
of such lease, each of such copies shewing by indorsement or otherwise the parcels
of which the person to whom such copy is delivered is the registered proprietor :
sect 34. See Land Transfer Act Rules, rules 23, 34.
Estate of Transferees of Leaseholds.
" A transfer for valuable consideration of leasehold land registered with a
declaration that the lessor had an absolute title to grant the lease under which the
land is held shall, when registered, be deemed to vest in the transferee the pos-
session of the land transferred for all the leasehold estate described in the
registered lease relating to such land, with all implied or expressed rights, privi-
leges, and appurtenance attached to such estate, but subject as follows :
(1.) To all implied and express covenants, obligations, and liabilities incident
to such estate ; and
(2.) To the incumbrances (if any) entered on the register ; and
(3.) Unless the contrary is expressed on the register, to such liabilities, rights,
and interests as affect the leasehold estate and are by this Act declared
not to he incumbrances in the case of registered freehold land ;
but free from all other estates and interests whatsoever, including estates and
interests of Her Majesty, her heirs and successors " : sect. 35.
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THE LAND TKANSB^EE ACT, 1875. 727
"A transfer for valuable consideration of leasehold land registered with a
declaration that the lessor had a qualified title to grant the lease under which the
land is held shall, when registered, have the same effect as a transfer for valuaole
consideration of the same land registered with a declaration that the lessor had an
absolute title to grant the lease under which the land is held, save that such
transfer shall not affect or prejudice the enforcement of any right or interest
appearing by the register to be excepted from the effect of registration " :
sect. 36.
"A transfer for valuable consideration of leasehold land registered without a
declaration of the title of the lessor shall not affect the enforcement of any estate,
right, or interest affecting or in derogation of the title of the lessor to grant the
lease under which the land is held ; but, save as aforesaid, shall, when registered,
have the same effect as a transfer for valuable consideration of the same land
registered with the declaration that the lessor had an absolute title to grant the
lease under which the land is held " : sect. 37.
" A transfer of leasehold land made without valuable consideration shall, so far
as the transferee is concerned, be subject to any unregistered estates, rights,
interests, or equities subject to which the transferor held the same ; iDut, save as
aforesaid, shall, when registered, in all respects, and in particular as respects any
registered dealings on the part of the transferee, have the same effect as a trans-
fer of the same land for valuable consideration " : sect. 38.
" On the transfer of any leasehold land under this Act, unless there be an
entry on the register negativing such implica"tion, there shall be implied as follows ;
(that is to say,)
(1.) On the part of the transferor a covenant with the transferee that, not-
withstanding anything by such transferor done, omitted, or knowingly
suffered, the rent, covenants, and conditions reserved and contained by
and in the registered lease, and on the part of tlie lessee to be paid,
performed, and observed, have been so paid, performed, and observed up
to the date of the transfer ; and
(2.) On the part of the transferee a covenant with the transferor, that he, the
transferee, his executors, administrators, or assigns, will pay, perform,
and observe the rent, covenants, and conditions by and in the registered
lease reserved and contained, and on the part of the lessee to be paid,
performed, and observed, and will keep the transferor, his heirs, execu-
tors, and administrators, indemnified against all actions, suits, expenses,
and claims on account of the nonpayment of the said rent or any part
thereof, or the breach of the said covenants or conditions, or any of
them " : sect. 39. See Land Transfer Act Rules, rule 24.
Tbansfee ot Charges.
" The registered proprietor of any charge may, in the prescribed mannci-,
transfer such charge to another person as proprietor. The transfer shall be com-
pleted by the registrar entering on the register," &c. : sect. 40.
The instrument by which any transfer of charge is made under this section is
to be left in the ofiSce, and the execution by the registered proprietor of the
charge attested by a solicitor and diily verified. See Land Transfer Act Rules,
rule 21.
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728 STATUTORY JUBISDIOTION.
^ Transmission of Land and Charges.
" On the death of the sole registered proprietor, or of the survivor of several
joint registered propiietors of any freehold land, such person shall be registered
as proprietor in the jjlace of the deceased proprietor or proprietors as may, on the
application of any person interested in the land, be appointed by the registrar,
regard being had to the rights of the several persons interested in such land, and
in particular to the selection of such person as may for the time being appear to
the registrar to 'be entitled according to law to be so appointed, subject to an
appeal to the Court in the prescribed manner by any person aggrieved by any
order of the registrar under this section " : sect. 41. See Land Transfer Act
Bules, rule 26.
" On the death of the sole registered proprietor, or of the survivor of several
joint registered proprietors of any leasehold land or of any charge, the executor
or administrator of such sole deceased proprietor, or of the survivor of such
joint proprietors, shall be entitled to be registered as proprietor in his place " :
sect. 42.
" Upon the bankruptcy of any registered proprietor of any land or charge, or
on the liquidation of his affairs by arrangement, his trustee shall be entitled to
be registered as proprietor in his place " : sect. 43.
" The husband of any female registered proprietor of freehold land may apply
to be registered as co-proprietor with his wife, but he shall be described on the
register as co-proprietor in right of his wife, and on his death in her lifetime the
original registry of the wife, with a change if necessary in the name, shall revive,
and confer the same rights as if her husband had never been registered as co-
prietor with her, subject nevertheless to any registered disposition which may
have been made by the husband and wife in the meantime. If the husband
survives the wife he shall not be entitled to be registered as sole proprietor of the
land, but there shall be registered as co-proprietor with him if he is entitled as
tenant by the curtesy, and as sole proprietor in place of himself and his deceased
wife if he is not entitled as tenant by the curtesy, such person as may, on the
application of any person interested in right of the wife, be appointed by the
registrar, with power for the registrar on a like application to appoint from time
to time another person or other persons in the event of any person registered as
co-proprietor with the husband dying in his lifetime.
" Any person aggrieved by any order of the registrar under this section may
appeal to the Court in the prescribed manner " : sect. 44. " The husband of any
female registered proprietor of leasehold land or of a charge may apply to be
registered as proprietor in her place " : sect. 45. See Land Transfer Act Rules,
rule 26.
" Any person registered in the place of a deceased or bankrupt proprietor shall
hold the land or charge in respect of which he is registered upon the trusts and
for the purposes to which the same is applicable by law, and subject to any un-
registered estates, rights, interests, or equities subject to which the deceased or
bankrupt proprietor held the same ; but, save as aforesaid, he shall in all respects,
and in particular as respects any registered dealings with such land or charge, be
in the same position as if he had taken such land or charge under a transfer for a
valuable consideration " : sect, 46.
" The fact of any person having become entitled to any land or charge in con-
sequence of the death or bankruptcy of any registered proprietor, or of the mar-
riage of any female proprietor, shall be proved in the prescribed manner " : sect. 47.
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THE LAND TRANSFER ACT, 1875. 729
"Section 5 of the Vendor and Pnrchaser Act, 1874, shall he repealed on and
after the commencement of this Act, except as to anything duly done thereunder
before the commencement of this Act ; and, instead thereof, be it enacted, that
upon the death of a bare trustee intestate as to any corporeal or incorporeal here-
ditament of which such trustee was seised in fee simple, such hereditament shall
vest like a chattel real in the legal personal representative from time to time of
such tnistee ; but the enactment by this section substituted for the aforesaid sec-
tion of ' The Vendor and Purchaser Act, 1874,' shall not apply to lands registered
under this Act " : sect. 48.
A person to whose fiduciary office no duties were originally attached, or who,
although such duties were originally attached to his office, would, on the requisi-
tion of his cedui que trust, be compelled to convey as a bare trustee within this
section : Christie v. Ovington, L. E. 1 Ch. D. 279.
PART III.
Unregistered Dealings with Eegistered Land.
" The registered proprietor alone shall be entitled to transfer or charge regis-
tered land by a registered disposition ; but, subject to the maintenance of the
estate and right of such proprietor, any person, whether the registered propiietor
or not of any registered land, having a sufficient estate or interest in such, land,
may create estates, rights, interests, and equities in the same manner as he might
do if the land were not registered ; and any persoh entitled to or interested in any
unregistered estates, rights, interests, or equities in registered land may protect
the same from being impaired by any act of the registered proprietor by entering
on the register such notices, cautions, inhibitions, or other restrictions as are in
this Act in that behalf mentioned.
" The registered proprietor alone shall be entitled to transfer a registered charge
by a registered disposition ; but, subject to the maintenance of the right of such
proprietor, unregistered interests in a registered charge may be created in the same
manner and with the same incidents, so far as the difference of the subject-matter
admits, in and with which unregistered estates and interests may be created in
registered land " : sect. 49.
Notice op Leases.
" Any lessee or other person entitled to or interested in a lease or agreement for
a lease of- registered land made subsequently to the last transfer of the land on
the register, where the term granted is for a life or lives,, or is determinable on a
life or lives, or exceeds twenty-one years, or where the occupation is not in accord-
ance with such lease or agreement, may apply to the registrar to register notice of
such lease or agreement in the prescribed manner, and when so registered every
registered proprietor of the land, and every person deriving title through him,
excepting proprietors of incumbrances registered prior to the registration of such
notice, shall be deemed to be affected with notice of such lease or agreement as
being an incumbrance on the land in respect of which the notice is entered " :
sect. 50.
"In order to register notice of a lease or agreement for a lease, if the registered
nroprietor of the land does not concur in such registry, the applicant shall obtain
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730 STATUTORY JUEISDlCTIONs
an order of the Cotrt, authorizing the registration of notice of such lease or agree-
ment and shall deliver such order to the registrar, accompanied with the original
lease or agreement or a copy thereof, and thereupon the registrar shall make a note
in the register identifying the lease or agreement or copy so deposited, and the
lease or agreement or copy so deposited shall be deemed to he the instrument of
■which notice is given ; but if the registered proprietor concurs in such registry,
notice may be entered in such manner as may be agreed upon " : sect. 51. See
Land Transfer Act Rules, rule 28.
Notice of Estates in Dowee by the Curtesy.
" Any person entitled to an estate in dower or by the curtesy in any registered
land may apply in the prescribed manner to the registrar to register notice of
such estate ; and the registrar, if satisfied of the title of such person to such estate,
shall register notice of the same accordingly in the prescribed form ; and when so
registered, s\ich estate shall be an incumbrance appearing on the register, and shall
be dealt with accordingly " : sect. 52. See Land Transfer Act Rules, rule 26.
Cautions against Eegistered Dealings
" Any person interested under any unregistered instrument, or interested as a
judgment creditor, or otherwise howsoever, in any land or charge registered in
the name of any other person, may lodge a caution with the registrar to the effect
that no dealing with such land or charge be had on the part of the registered
proprietor until notice has been served upon the cautioner.
" The caution shall be supported by an affidavit or declaration made by the
cautioner or his agent in the prescribed form, and containing the prescribed
particulars.
" Provided, that a person interested under a lease or agreement for a lease of
which notice has been entered on the register, or entitled to an estate in dower,
or estate by the curtesy, of which notice has been entered on the register, shall
not be entitled to a caution in respect of such lease or estate in dower or by the
curtesy ": sect. 53. See Land Transfer Act Rules, rule 16.
" After any such caution has been lodged in respect of any land or charge, the
registrar shall not, without the consent of the cautioner, register any dealing
with such land or charge until he has served notice on the cautioner, warning
him that his caution will cease to have any effect after the expiration of the
prescribed number of days next ensuing the date at which such notice is served ;
and after the expiration of such time as aforesaid the caution shall cease unless
an order to the contrary is made by the registrar, and upon the caution so ceasing
the land or charge shall be dealt with in the same manner as if no caution had
been lodged :" sect. 54.
The time to be limited by the notice to be served on the cautioner under the
54th section is to be fourteen days, or such other period, not less than seven days,
as the registrar may direct. The consent of a cautioner under this section is to
be signed by him and attested by a solicitor : Land Transfer Act Rules, rule 16.
" If before the expiration of the said period the cautioner, or some other person
on his behalf, appears before the registrar, and gives sufficient security to indem-
nify every party against any damage that may be sustained by reason of any
dealing with the land or charge being delayed, the registrar may thereupon, if he
thinks fit so lo do, delay registering any' dealing with the land or charge for stich
further period as he thinks just :" sect. 55.
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THE LAND TRANSFER ACT, 1875. 731
"If any person lodges a caution with the registrar without reasonable cause,
he shall be liable to make to any person who may have sustained damage by the
lodging of such caution such compensation as may be just, and such compensa-
tion shall be recoverable as a debt by the person who has sustained damage
from the person who lodged the caution.
" Any person aggrieved by any act done by the registrar in relation to cautions
under this Act may appeal to the Court in the prescribed manner ": sect. 56.
Inhibition aoainst Eegistered Dealings without Oeder of
Court.
"The Court, or, subject to an appeal to the Court, the registrar, upon the ap-
plication of any person interested, made in the prescribed manner, in relation to
any registered land or chaise, may, after directing such inquiries (if any) to he
made and notices to be given and hearing such persons as the Court or r^istrar
thinks expedient, issue an order or make an entry inhibiting for a time, or until
the occurrence of an event to be named in such order or entry, or generally
until further order or entry, any dealing with any registered land or registered
charge.
" The Court or registrar may make or refuse to make any such order or entry,
and annex thereto any terms or conditions the Court or registrar may think fit,
and discharge such order or cancel such entry when granted, with or without
costs, and generally act in the premises in such manner as the justice of the case
requires.
" Any person aggrieved by any act done by the registrar in pursuance of this
section may appeal to the Court in the prescribed manner ": sect. 57.
The application to the registrar for an order under this section must be sup-
ported by the declaration of the applicant or his solicitor : Land Transfer Act
Rules, rule 17.
Power of Eegistered Proprietor to impose Eesteictions.
" Where the registered proprietor of any land is desirous for his own sake, or
at the request of some person beneficially interested in such land, to place re-
strictions on transferring or charging such land, such proprietor may apply to
the registrar to make an entry in the register jfchat no transfer shall be made of
or charge created on such land, unless the following things, or such of them as
the proprietor may determine, are done ; (that is to say,)
Unless notice of any application for a transfer or for the creation of a charge
is transmitted by post to such address as he may specify to the registrar :
Unless the consent of some person or persons, to be named by such proprietor,
is given to the transfer or the creation of a charge :
Unless some such other matter or thing is done as may be required by the
apphcant and approved by the registrar": sect. 58.
* The registrar shall thereupon, if satisfled of the right of the applicant to give
such directions, make a note of such directions on the register, and no transfer
shall be made or charge created except in conformity with such directions ; but
it shall not be the duty of the registrar to enter any of the above directions,
except upon such terms as to payment of fees and otherwise as may be pre-
scribed, or to enter any restriction that the registrar may deem unreasonable, or
calculated to cause inconvenience ; and any such directions may at any time be
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732 STATUTORY JURISDICTION.
withdrawn or modified at the instance or. all the persons for the time being
appearing by the registry to be interested in such directions, and shall, also be
subject to be set aside by the order of the Court ": sect. 59.
As -to applications under these sections, see Land Transfer Act Rules, rule 18.
PART IV.
PeOVISIOSS 8UPPLEMB^^TAL TO FOREGOING PaRTS OF AcT,
Caution against Entry of Land on Eegister.
" Any person having or claiming such an interest in any land which is not
already registered as entitles him to object to any disposition thereof being made
without his consent, may lodge a caution with the registrar to the effect that the
cautioner is entitled to notice in the prescribed form, and to be served in the
prescribed manner, of any application that may be made for the, registration of
such land": sect. 60. See Land Transfer Act Rules, rule 15.
" The caution shall be supported by an affidavit or declaration in the pre-
scribed form, stating the nature of the interest of the cautioner, the land to be
affected by such caution, and such other matters as may be prescribed" : sect. 61.
"After a caution has been lodged in respect of any land, which has not already
been registered, registration shall not be made of such land until notice has been
served on the cautioner to appear and oppose, if he thinks fit, such registration,
and the prescribed time has elapsed since the date of the service of such notice,
or the cautioner has entered an appearance, which may first happen " : sect. 62.
., " If any person lodges a caution with the registrar without reasonable cause,
he shall be liable to make to any person who may have sustained damage by the
lodging of such caution such compensation as may be just, and such compensa-
tion shall be deemed to be a debt due to the person who has sustained damage
from the person who has lodged the caution " : sect. 63.
" A caution lodged in pursuance of this Act shall not prejudice the claim or
title of any person, and shall have no effect whatever except as in this Act
mentioned"; sect. 64.
Crown Lands.
" With respect to land or any estate, right, or interest in land vested in Her
Majesty, her heirs or successors, either in right, of the Crown or of the Duchy of
Lancaster, or otherwise, or vested in any public officer or body in trust for the
public service, the public officer or body having the management thereof (if any),
or, if none, then such person as Her Majesty, her heirs or successoi-s, may by
writing under her or their sign manual appoint, may represent the owner of such
land, estate, right, or interest for all the purposes of this Act, and shall be
entitled to such notices, and may make and enter any such application or cau-
tions, and do all such other acts, as any owner of land, or of any estate, right, or
interest therein (as the case may be) is entitled to receive, make, enter, or do
under this Act ; and with respect to land or any estate, right, or interest in land
belonging to the Duchy of Cornwall, such person as the Duke of Cornwall for the
time buing, or as the personage for the time being entitled to the revenues and
possessions of the Duchy of Cornwall, may in writing appoint, may act as and
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THE LAND TRANSFER ACT, 1875. 733
represent the owner of sucli land, tetate, right, or interest for all the purposes of
this Act, and shall be entitled to receive such notices, and may make and enter
any such application or cautions, and do all such other acts as any owner of land
or of any estate, right, or interest in land (as the case may he) is entitled to make,
enter, or do under this Act " : sect. 65.
" If it appears to the registrar that any land, application for registration whereof
is made to him, comprises land below high- water mark at ordinary spring tides,
he shall not register the land unless and until he is satisfied that at least one
month's notice in writing of thie application has been given to the Board of
Trade ; and in case of land in the county palatine of Lancaster, also to the proper
officer of the Duchy of Lancaster ; and in case of land in the counties of Cornwall
or Devon, also to the proper officer of the Duke of Cornwall ; and in all other
cases also to the Commissioners of Her Majesty's Woods, Forests, and Land
Revenues " : sect. 66.
Eegistration of Lands of Dipfjsrent Tenuees.
"If it appears to the registrar that any land, application for registration whereof
is made to him, comprises land of freehold tenure and also land of a tenure other
than freehold intermixed and undistinguishable, he may, notwithstanding any-
thing in this Act, register the land, but he shall enter notice on the register in
such manner as he thinks fit of the facts relating to the tenure of the land, and
the tenure of the portion of the land other than freehold shall remain unaffected
by the registration " : sect. 67.
Power of Trustees to sell.
" Any person holding land on trust for sale, and any trustee, mortgagee, or
other person having a power of selling land, may authorize the purchaser , to
make an application to be registered as first proprietor with any title which a
proprietor is authorized to be registered with under this Act, and may consent to
the performance of the contract being conditional on his being registered, or may
himself apply to be registered as such proprietor with the consent of the persons
(if any) whose consent is required to the exercise by the applicant of his trust or
power of sale; and the amount of all costs, charges, and expenses properly
incurred by such person in or about such application shall in all cases be ascer-
tained and declared by the registrar, and shall be deemed to be costs, charges,
and expenses properly incurred by such person in the execution of his trust or in
pursuance of his power ; and such person may retain or reimburse the same to
himself out of any money coming to him under the trust or power, and he shall
not be liable to any account in equity in respect thereof": sect. 68.
Eegistration of Part Owners.
" Any two or more persons entitled for their own benefit, concurrently or
successively, or partly in one mode and partly in another, to such estates, rights,
or interests in land as tdgether make up such an estate as would, if vested in one
person, entitle him to be registered as proprietor of the land, may (subject as in
this Act mentioned with respect to the number of persons to be registered in
respect of the same land), apply to the registrar to be registered as joint pto-
prietors, in the same manner and with the same incidents, so far as circumstances
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734 STATUTORY JURISDICTION.
admit, in and with which it is in thi^ Act declared that any individual'proprietor
may be registered " : sect. 69.
Instruments and Facts to be discloses.
" Before the completion of the registration of any land in respect of which an
examination of title is required, the vendor and his solicitor, in cases where the
applicant is a person who has contracted to buy such land, and in all other cases
the applicant for registration and his solicitor, shall each, if required by the
registrar, make an affidavit or declaration that to the best of his knowledge and
belief all deeds, wills, and instruments of title, and all charges and incumbrances
affecting the title to the land which is the subject of the application, and all facts
material to such title, have been disclosed in the course of the investigation of
title made by the registrar. The registrar may require any person making an
affidavit or declaration iti pursuance of this section to state in his affidavit or
declaration what means he has had of becoming acquainted with the several
matters referred to In this section ; and if the registrar is of opinion that any
further or other evidence is necessary or desirable, he may refuse to complete the
registration until such further or other evidence is produced " : sect. 70.
Pboduotion of Deeds — Disobedience to Order of Eegistrar.
" When an application has been made to the registrar for the registration of
any land, if any person has in his possession or custody any deeds, instruments,
or evidences of title relating to or affecting such land, to the production of which
the applicant or any trustee for him is entitled, the registrar may require such
person to shew cause, within a time limited, why he should not produce such
deeds, instruments, or evidences of title to the registrar, or otherwise, as the
registrar may deem fit^ and, unless cause is shewn to the satisfaction of the re-
gistrar within the time limited, such deeds, instruments, and evidences of title may
be ordered by the registrar to be produced at the expense of the applicant, at such
time and place, and in such manner, and on t>uch terms as the registrar thinks fit.
" Any person aggrieved by any order of the registrar under this section may
appeal in the prescribed manner to the Court, which may annul or confirm the
order of the registrar with or without modification.
" If any person disobeys any order of the registrar made in pureuance of this
section, the registrar may certify such disobedience to the Court, and thereupon
such person, subject to such right of appeal as aforesaid, may be punished by the
Court in the same manner in all respects as if the order made by the registrar
were the order of the Court" : sect. 71.
" A person shall not be registered as proprietor of land until, if required by the
registrar, he has produced to him such documents of title as will in the opinion of
the registrar, when stamped or otherwise marked, give notice to any purchaser or
other-person dealing with such land of the fact of the registration, and the regis-
trar shall stamp or otherwise mark the same accordingly, or until he has other-
wise satisfied the registrar that the fact of such registration cannot be concealed
from a purchaser or other person dealing with the land " : sect. 72,
Costs — Disobedience to Order of Eegistrar.
" All costs, charges, and expenses that are incurred by any parties in or about
any proceedings for registration of land shall, unless the parties otherwise agre«'
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THE LAND TRANSFER ACT, 1875. 735
be taxed by the taxing officer of the Court of Chancery as between solicitor and
client, but the persons by whom and the proportions in which such costs, charpes,
and expenses are to be paid shall be in the discretion of the registrar, and shall
be determined according to orders of the registrar, regard being had to the fol-
lowing provision ; namely, that any applicant under this Act is \iah\e prima, facie
to pay all costs, charges, and expenses incurred by or in consequence of his
application, except in a case where parties object whose rights are sufficiently
secured without their appearance, or where any costs, charges, or expenses are
incurred unnecessarily or improperly, and subject to this proviso, that any party
aggrieved by any order of the registrar under this section may appeal in the
prescribed manner to the Court, which may annul or confirm the order of the
registrar, with or without modification.
" If any person disobeys any order of the registrar made in pursuance of this
section, the registrar may certify such disobedience to the Court, and thereupon
such person, subject to such right of. appeal as aforesaid, may be punished by the
Court in the same manner in all respects as if the order made by the registrar
were the order of the Court " : sect. 73.
Doubtful Questions arising on Title.
"Whenever, upon the examination of the title to any land the registrar enter-
tains a doubt as to any matter of law or fact arising upon such title, he may,
upon the application of any party interested in such land, refer a case for the
opinion of any of Her Majesty's superior Courts, with power for the Court to
direct an issue to be tried before any jury for the purpose of determining any
fact ; the registrar may also name the parties to such case, and the manner in
which the proceedings in relation thereto are to be brought before the Court to
which such case is referred" : sect. 74.
" The opinion of any Court to whom any case is referred by the registrar shall
be conclusive on all the parties to such case, unless the Court before whom such
case is heard permits an appeal to be had " : sect. 75.
" Where any infants, married women, idiots, lunatics, persons of unsound
mind, persons absent beyond seas, or persons yet unborn, are interested in the
land in respect of the title to which any question arises as aforesaid, any other
persons interested in such land may apply to 'the Court,' as defined by this
Act, for a direction that the opinion of the Conrt to whom the case is referred
under this Act shall be conclusively binding on such infants, married women,
idiots, lunatics, persons of unsound mind, persons beyond the seas, or unborn
persons " : sect. 76.
" ' The Court ' as defined by this Act shall hear the allegations of all parties ap-
pearing before it. It may disapprove altogether, or may approve, either with or
without modification, of the directions of the registrar in respect to any case
referred as to the title of land ; it may also, if necessary, appoint a guardian or
other person to appear on behalf of any infants, married women, idiots, lunatics,
persons of unsound mind, persons absent beyond seas, or unborn persons ; and if
such Court is satisfied that the interests of the persons labouring under disability,
absent, or unborn, will be sufficiently represented in any case, it shall make an
order declaring that all persons, with the exceptions (if any) named in the order,
g,re to be conclusively bound, and thereupon all persons, with such exceptions (if
any) as aforesaid, shall be conclusively bound by any decision of the Court
havin'' cognizance of the case in which such persons are concerned" : sect. 77.
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736 STATUTOBY JURISDICTION.
Land Certificates, Office Copies of Leases, and Certificates of
Charge.
" If any land certificate or office copy of a registered lease or certificate of
charge is lost, mislaid, or destroyed, the registrar may, upon being satisfied of
the fact of such loss, mislaying, or destruction, grant a new land certificate or
ofSce copy or certificate of charge in the place of the former one " : sect. 78. See
Land Transfer Act Rules, rule 35. ,
" The registrar may, upon the delivery up to him of a land certificate or of an
ofiSce copy of a registered lease or of a certificate of charge, grant a new land
certificate or office copy of a lease or certificate of charge in the place of the one
delivered up " : sect. 79.
" Any land certificate or certificate of charge shall be prima facie evidence of
the several matters therein contained, and the office copy of a registered lease
shall be evidence of the contents of the registered lease " : sect. 80.
" Subject to any registered estates, charges, or rights, the deposit of the land
certificate in the case of freehold land, and of the office copy of the r^stered
lease in the case of leasehold land, shall, for the purpose of creating a lien on the
land to which such certificate or lease relates, be deemed equivalent to a deposit
of the title deeds of the land" : sect. 81.
Special Hereditaments.
" The registrar may register the proprietor of any advowson, rent, tithes, im^
propriate, or other incorporeal hereditament of freehold tenure, enjoyed in gross
also the proprietor of any mines or minerals where the same have been severed
from the land, in the same manner and with the same incidents in and with
which he is by this Act empowered to register land, or as near thereto as cir-
cumstances permit.
" The registrar may also in the prescribed manner register any fee, farm grant,
or other grant, reserving rents or services to which the fee simple estate In any
freehold land about to be registered, or registered, may be subject, with such
particulars of the land or services, and the conditions annexed to the non-payment
or non-performance or otherwise of such rent and services as may be prescribed,
and any record so made shall be conclusive evidence as to the rents, services, and
conditions so recorded, and such fee simple estate as last aforesaid shall be subject
thereto accordingly " : sect. 82. See Land Transfer Act Rules, rule 32.
General Provisions,
"The following enactments shall be made with respect to registration of
title:—
(1.) There shall not be entered on the register or be receivable by the registrar
any notice of any trust, implied, express, or constructive ; and
(2.) No person shall be registered as proprietor of any undivided share in any
land or charge, and a number of persons exceeding the prescribed number
shall not be registered as proprietors of the same land or charge ; and if
the number of persons shewing title exceeds such prescribed number,
such of them not exceeding the prescribed number as may bo agreed
upon, or as the regisU'ar may in case of diflerence decide, shall be regis-
tered as proprietors ; and
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THE LAND TRANSFER ACT, 1875. 737
(3.) Upon the occasion of the registry of two or more persons as proprietors of
the same land or of the same charge, an entry may, with their consent,
be made on the register, to the effect that when the number of such pro-
prietors is reduced below a certain specified number, no registered dis-
position of such land or charge shall be made except under the order of
the Court ; and
(4.) Where land is registered in the names of husband and wife as co-pro-
prietors, no registered disposition of such land shall take place until the
wife, if alive, has been examined in the prescribed manner and has assented
to such disposition after full explanation of her rights in the land and of
the effect of the proposed disposition ; and*
(5.) Registered land shall be described in such manner as the registrar thinks
best calculated to secure accuracy, but such description shall not be
conclusive as to the boundaries or extent of the registered land ; and
(6.) No alteration shall be made in the registered description of land, except
under the order of the Court or by way of explanation ; but this pro-
vision shall not be construed to extend to registered dealings with regis-
tered land in separate parcels by the registered description although such
land was originally registered as one estate ; and
(7.) Previously to registering any proposed purchaser as first proprietor of any
land or to registering any disposition of land, it shall be the duty of the
registrar to ascertain that all such stamp duties have been satisfied as
would be payable if the land had been conveyed by an unregistered dis-
position to such proposed purchaser, or the disposition to be registered
had been an unregistered disposition :
(8.) The provisions of this Act with respect to the liability of registered land
to succession duty and to the grant of a certificate by the Commissioners
of Inland Revenue in respect of the exemption from succession duty,
and to the notification of such exemption on the register, and to the
effect of such notification, shall apply with the necessary variations to a
registered charge under this Act " : sect. 83.
Annexation of Conditions to Kesistered Land.
" Where any land is about to be registered, or any registered land is about to
be transferred to a purchaser for valuable consideration, there may be registered
as annexed thereto, subject to general rules and in the prescribed maimer, a con-
dition that such land or any specified portion thereof is not to be built on, or is
to be or not to be used in a particular manner, or any other condition running
with or capable of being legally annexed to land, and the first proprietor and
every transferee, and every other person deriving title from him, shall be deemed
to be affected with notice of such condition ; nevertheless, any such condition
may be modified or discharged by order of the Court, on proof to the satisfaction
of the. Court that such modification will be beneficial to the persons principally
interested in the enforcement of such condition": sect. 84. See Land Transfer
Rules, rule 31.
The Trustee Act, 1850.
" All the provisions of the Trustee Act, 1850, and of any Act amending the
same, shall apply to land and charges registered under this Act, but this enact-
ment shall not prejudice the applicability to such land and charges of any pro-
visions of such Acts i-eh,0tgjtiilgi^^ fiffmJSdf^ " '■ ^ect. 85.
738 STATUTORY JURISDICTION.
Indemnity op Eegistrar.
" The registrar shall not, nor shall the assistant registrar nor any person acting
under his authority, or under any order or general rule made in pursuance of this
Act, be liable to any action, suit, or proceeding for or in respect of any act or
matter lonafide done or omitted to be done in the exercise or supposed exercise
of the powers of this Act ; or any order or general rule made in pursuance of
this Act": sect. 86.
Maeeied Woman.
" Where a married woman, ^entitled for hei; separate use, and not restrained
from anticipation, is desirous of giving any consent, or becoming party to any
proceeding under this Act, she shall be deemed to be an unmarried woman, but
when any other married woman is desirous of giving any consent, or becoming
party to any proceeding under this Act she shall be examined in the prescribed
manner, and it shall be ascertained that she is acting freely and voluntarily, and
the Court may, where it sees fit, appoint a person to act as the next friend of a
married woman for the purpose of any proceeding under this Act, and may from
time to time remove or change such next friend " : sect. 87. See Land Transfer
Act Rules, rule 60.
Infants and Lunatics.
" Where any person who (if not under disability) might have made any appli-
cation, given any consent, done any act, or been party to any proceeding in rela-
tion to any land or charge under this Act, is an infant, idiot, or lunatic, the
guardian or committee of the estate respectively of such person may make such
applications, give such consents, do such acts, and be party to such proceedings,
as such person respectively, if free from disability, might have made, given, done,
or been party to, and shaU otherwise represent such person for the purposes of
this Act ; where there is no guardian or committee of the estate of any such
person as aforesaid, being infant, idiot, or lunatic, or where any person is of un-
sound mind or incapable of managing his affairs, but has not been found lunatic
under an inquisition, it shall be lawful for the Court to appoint a guardian of such
person for the purpose of any proceedings under this Act, and from time to time
to change such guardian": sect. 88. '
As TO Notices.
" Every person whose name is entered on the register as proprietor of land or of
a charge, or as cautioner, or as entitled to receive any notice, or in any other
character, shall furnish to the registrar a place of address in the United King-
dom " : sect. 89.
" Every notice by this Act required to be given to any person shall be served
personally, or sent through the post in a registered letter marked outside ' Office
of Land Registry,' and directed to such person at the address furnished to the
registrar, and unless returned, shall be deemed to have been received by the
person addressed within such period, not less than seven days, exclusive of the
day of posting, as may be prescribed " : sect. 90.
" Her Majesty's Postmaster-General shall give directions for the immediate
return to the registrar of all letters marked as aforesaid, and addressed to any
person who cannot be found, and on the return of any letter containing any
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THE LAND TRANSFER ACT, 1875. 739
notice, the registrar shall act in the matter requiring such noticfc to be given in
manner prescribed " : sect. 91.
"A purchaser for valuable consideration shall not be affected by the omis-
sion to send any notice by this Act directed to be given, or by the non-receipt
thereof " : sect. 92.
Specific Performance — Costs.
" Where a suit is instituted for the specific performance of a contract relating
to registered land, or a registered charge, the Court having cognizance of such
suit may by summons, or by such other mode as it deems expedient, cause all
or any parties who have registered estates or rights in such land or charge, or have
entered up notices, cautions, or inhibitions against the same, to appear in such
suit, and shew cause why such contract should not be specifically performed, and
the Coiwt may direct that any order made by the Court in such suit shall be
binding on such parties or any of them " : sect. 93.
" All costs incurred by any parties so appearing in a suit to enforce against a
vendor specific performance of his contract to sell registered land or a registered
charge shall be taxed as between solicitor and client, aiid unless the Court other-
wise orders, be paid by such vendor " : sect. 94.
Eectification of the Eegistee.
" Subject to any estates or rights acquired by registration in pursuance of this
Act, where any Court of competent jurisdiction has decided that any person is
entitled to any estate, right, or interest in or to any registered land or charge, and
as a consequence of such decision such Court is of opinion that a rectification of
the register is required, such Court may make an order directing the register to
be rectified in such manner as it thinks just " : sect. 95.
" Subject to any estates or rights acquired by registration in pursuance of this
Act, if any person is aggrieved by any entry made or by the omission of any entry
from the register under this Act, or if default is made, or unnecessary delay takes
place in making any entry in the register, any person s^grieved by such entry,
omission, default, or delay may apply to the Court in the prescribed manner for
an order that the register may be rectified, and the Court may either refuse such
application with or without costs, to be paid by the applicant, or ft may, if satis-
fied of the justice of the case, make an order for th§ rectification of the register " :
sect. 96.
" The registrar shall obey the order of any competent Court in relation to any
registered land on being served with such order or an of&cial copy thereof":
sect. 97-
Appeals.
" Upon any application to the Court being made on the requirement of or
appeal from the registrar, or for the rectification of the register, under the 96th
section, a statement shall be prepared by the applicant and settled and signed by
the registrar, and forwarded to the Court through the office before the hearing ;
" All applications to the Court and appeals from the registrar shall be by
summons ;
" No appeal from a decision or order of the registrar, or of the Court, shall
affect any dealing for valuable consideration duly registered before a notice in
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740 STATUTORY JURISDICTION.
writing of such Appeal has been lodged in the oflSce on the part of the appellant,
and a note thereof on his application, in the register ;
" No appeals shall be brought from a decision or order of the registrar, or of
the Court, after twenty-eight days from the date of such decision or order, with-
out leave of the Court " : Land Transfer Act Rules, rule 59.
" Service of any order or official copy order of any Court on the registrar shall
be made by leaving the same in the office, and an application shall be left at the
same time for the rectification of the register being made, or any other act being
done in accordance with such order, and the matter shall be proceeded with as
the registrar shall direct " : Ibid.
As TO Fraud.
" Subject to the provisions in this Act contained with respect to registered dis-
positions for valuable consideration, any disposition of land or of a charge on land
which if imregistered would be fraudulent and void, shall, notwithstanding regis-
tration, be fraudulent and void in like manner " : sect. 98. See also sects. 99^103.
Inspection of Eegister.
" Subject to such' regulations and exceptions and to the payment of such sums
as may be fixed by general rules, any person registered as proprietor of any land
or charge, and any person authorized by such proprietor, or by an order of the
Court, or by general rule, but no other person, may inspect and make copies of
and extracts from any register or document in the custody of the registrar
relating to such land or charge " : sect. 104. See also Land Transfer Act Rules,
rule 57.
Description and Powers of "the Court."
" For the purposes of this Act, ' the Court ' shall mean the Court of Chancery
or the County Courts, according as the one or other of such Courts may be pre-
scribed by the General Rules made for carrying into effect this Act.
" The County Court shall, in cases where it has jurisdiction under this Act,
have, for all the purposes of such jurisdictioiv, all the powers of the Court of
Chancery.
" Any jurisdiction of the Court of Chancery or County Court under this Act
may be exercised by any judge of the said Court, whether sitting in open Court
or in chambers " : sect. 114.
" The Lord Chancellor may from time to time assign the duties vested in the
Court of Chancery in relation to matters under this Act to any particular judge
or judges of that Court " : sect. 115.
" Any person aggrieved by any order of a judge of a County Court may,
within the prescribed time and in the prescribed manner, appeal to the Court of
Chancery.
" The Court on hearing such appeal may give judgment affirming, reversing, or
modifying the order appealed from, and may finally decide thereon, and make
such order as to costs in the Court below and of the appeal as may be agreeable
to justice ; and if the Court alter or modify the order, such order so altered or
modified shall be of the like effect as if it were the order of the County Court.
The Court of Chancery may also, in cases where the Court thinks it expedient so
to do, instead of making a final order, remit the case, with such directions as the
Court may think fit, to the Court below " : sect. 116.
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THE LAND TRANSFER ACT, 1875. 741
" Any person aggrieved by an order made under this Act by the Court of
Chancery otherwise than on appeal from a County Court, may appeal within the
prescribed time, in the same manner and with the same incidents in and with
which orders made by the Court of Chancery on cases within the ordinary juris-
diction of such Court may be appealed from " : sect. 117.
DisTEioT Eegisteies [See sect. 122].
Local Eegisteies [See sect. 128].
Eepeal.
"The seventh section of the Vendor and Purchaser Act, 1874, is hereby
repealed, as from the date at which it came into operation, except as to anything
duly done thereunder before the commencement of this Act " : sect. 129.
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( 742 ;
CHAPTER LII.
THE TEADE MAEKS EEGISTEATION ACT, 1875.
38 & 39 Vict. c. 91.
Ebqistbation of Trade Marks.
" A register of trade marks as defined by this Act, and of the proprietors
thereof shall be established under the superintendence of the Commissioners of
Patents, and from and after the first day of July, one thousand eight hundred
and seventy-six, a person shall not be entitled to institute any proceeding to
prevent the infringement of any trade mark as defined by this Act until and
unless such trade mark is registered in pursuance of this Act " : sect. 1.
Application for Registry.
A person, whether a British subject or an alien, desiring to register a trade
mark shall apply to the registrar by sending to him a statement accompanied by
such declaration as is mentioned in mle 9, and the prescribed fee : Trade Marks
Eegistration Act, rule 5.
' The statement is to contain the particulars enumerated in rule 6.
The nature and size of representation of trade marks are specified in rule 8.
Advertisement of Application [See Eules 12-15.]
EEaiSTRATION OF TrADE MaEKS.
Disputed Glaim — Befereme to the Court.
" Where each of several persons claim to be re^stered as proprietors of the same
or a nearly identical trade mark, in respect of the same goods, or goods belonging
to the same class, the registrar shall use his discretion as to registering all or any
of such trade marks, either unconditionally or on the condition of the introduction
of such variations (if any) or otherwise as he thinks fit, or the registrar may, if
in any case he thinks it expedient, submit or require the claimants to submit
their rights to the Court " : rule 17.
Characteristics of Eeqistered Trade Mark.
" A trade mark must be registered as belonging to particular goods, or classes
of goods ; and when registered shall be assigned and transmitted only in con-
nection with the goodwill of the business concerned in such particular goods or
classes of goods, and shall be determinable with such goodwill, but subject ag
aforesaid j:egistration of a trade mark shall be deemed to be equivalent to public
use of such mark " : sect. 2.
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THE TRADE MAEKS REGISTRATION ACT, 1875. 743
Title op Peopeietoes.
" The registration of a person as first proprietor of a trade mark shall be prima
fade evidence of his right to the exclusive use of such trade mark, and shall,
after the expiration of five years from the date of such registration, be conclusive
evidence of his right to the exclusive use of such trade mark, subject to the
provisions of this Act as to its connection with the goodvfill^ of a business " :
sect. 3.
" Every proprietor registered in respect to a trade mark subsequently to the
first registered proprietor shall, as respects his title to that trade mark, stand in
the same position as if his title were a continuation of the title of the first
registered proprietor " : sect. 4.
Eectification of Kegistee.
" If the name of any person who is not for the time being entitled to the
exclusive use of a trade mark in accordance with this Act, or otherwise in
accordance with law, is entered on the register of trade marks as a proprietor of
such trade mark, or if the registrar refuses to enter on the register as proprietor
of a trade mark the name of any person who is for the time being entitled to the
exclusive use of such trade mark in accordance with this Act, or otherwise in
accordance with law, or if any mark is registered as a trade mark which is not
authorized to be so registered under this Act, any person aggrieved may apply
in the prescribed manner for an order of the Court that the register may be
rectified ; and the Court may either refuse such application, or it may, if satisfied
of the justice of the case, make an order for the rectification of the register, and
may award damages to the party aggrieved.
" Where each of several persons claims to be registered as proprietor of the
same trade mark, the registrar may refuse to comply with the claims of any of
such persons until their rights have been determined by the Court, and the
registrar may himself submit or require the claimants to submit in the prescribed
manner their rights to the Court.
" The Court may, in any proceeding under this section, decide any question as
to whether a mark is or is not such a trade mark as is authorized to be registered
under this Act, also any question relating to the right of any person who is party
to such proceeding to have his name entered on the register of trade marks, or to
have the name of some other person removed from such register, also any other
question that it may be necessary or expedient to decide for the rSctification of
the register.
" The Court may direct an issue to be tried for the decision of any question of
fact which may require to be decided for the purposes of this section.
'' Whenever any order has been made rectifying the register, the Court shall
by its order direct that due notice of such rectification be given to the registrar":
sect. 5.
See Teade Maeks Eegisteation Acts Eules, 35-39.
Applications to the Couet.
Motion — Special Case.
The Court for the purposes of this Act is hereby declared to be the Chancery
Division of Her Majesty's High Court of Justice " : rule 42.
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.1) ,0
744 STATUTOEY JURISDICTION.
" An application to the Court under the Act, and these Rules may, subject to
the Rules of Court under the Supreme Court of Judicature Act, 1875, be made by
motion or by application in chambers, or in such other manner as the Court may
direct " : rule 43.'
" Where the registrar refuses to comply with Ihe claims of any person until
their rights have been determined by the Court, the manner in which the rights
of such claimants may be submitted by the registrar, or if the registrar so require,
by the claimants, to the Court, shall, unless the Court otherwise order, be by a
special case ; and such special case shall be filed and proceeded with in like
manner as any other special case submitted to the Court, or in such other manner
as the Court may direct " : rule 44.
" The special case may be agreed to by the parties, or if they differ may be
settled by the registrar " : rule 45.
Eestkictions on Kegistet op Trade Maeks.
" The registrar shall not, without the special leave of the Court, to be given in
the prescribed manner, register in respect of the same goods or classes of goods a
trade mark identical with one which is already registered with respect to such
goods or classes of goods, and the registrar shall not register with respect to the
same goods or classes of goods a trade mark so nearly resembling a trade mark
, already on the register with respect to such goods or classes of goods as to be
calculated to deceive. \
" It shall not be lawful to register as part of or in combination with a trade mark
any words the exclusive use of which would not, by reason of their being calcu-
lated to deceive or otherwise, be deemed entitled to protection in a Court of Equity ;
or any scandalous designs" : sect. 6.
Eemoval of Teade Maek.
A trade mark is removed after the expiration of fourteen years unless an
additional fee is paid by the proprietor : see rules 30-33.
" The Court may on the application of any person aggrieved, remove any trade
mark from the register on the ground, after the expiration of five years from the
date of the registry thereof, that the registered proprietor is not engaged in any
business concerned in the goods with respect to which a trade mark is registered ":
rule 34.
Eegistee Office and General Eules.
A register office is to be established from and after such time (not being later
than the first day of January one thousand eight hundred and seventy-six), in
such manner, &c., as the Lord Chancellor may, with the consent of the Treasury,
direct ; and the Lord Chancellor may from time to time, with the assent of the
Treasury as to fees, make, and when made, alter, annul, or vary, such general
rules, &c., as he may deem expedient.
" Any rules made in pursuance of this section shall be laid before both Houses
of Parliament if Parliament be then sitting, or if not then sitting, then within ten
days from the then next assembling of Parliament, &c." : sect. 7.
Certificate of Eegistrae.
" The certificate of the registrar as to any entry, matter, or thing which he is
authorized by this Act, or any general rules made thereunder, to make or do,
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THE TRADE MARKS REGISTRATION ACT, 1875. T45
shall be evidence of such entry having been madfe, and of the contents thereof,
and of such matters and things having been done or left undone " : sect. 8.
The Cutlers' Company and Sheffield Corporate Marks.
" With respect to the master, wardens, searchers, assistants, and c6mmonalty of
the Company of Cutlers in Hallamshire, in the county of York (in this Act
called ' the Cutlers' Company '), and the marks or devices (in this Act called
' Sheffield corporate marks ') assigned or to be assigned by the master, wardens,
searchers, and assistants of that company, be it enacted as follows :
(1.) Within the prescribed time and in the prescribed manner the Cutlers'
Company shall at their own expense deliver to the registrar under this
Act copies of all Sheffield corporate marks in force at the time of such
delivery :
(2.) When any person, after the passing of this Act, applies to the said master,
wardens, searchers, and assistants to assign to him any mark or device,
notice of such application, with a copy of such mark or device, shall,
within the prescribed time and in the prescribed manner, be delivered to
the registrar under this Act ; and such mark or device shall not be
assigned until after the expiration of the prescribed period from the
giving of such notice. In like manner, when any person applies for the
registration under this Act of a trade mark as belonging to any goods or
class of goods specified in section two of the Cutlers' Company's Act
of 1860, notice of such application, with a copy of such trade mark,
shall, within the prescribed time and in the prescribed manner, be deli-
vered to the Cutlers' Company ; and such trade mark shall not be regis-
tered until after the expiration of the prescribed period from the giving
of the last-mentioned notice :
(3.) Upon the assigning of any such mark or device, or the registration of any
such trade mark as aforesaid, notice of the assignment or registration shall,
within the prescribed time and in the prescribed manner, be given to the
registrar under this Act, or to the Cutlers' Company, as the case may be :
(4.) The registrar under this Act, without th? special leave of the Court, to be
given only in cases where the applicant proves his right, shall not in
respect of any goods or classes of goods with respect to which a Sheffield
coi'porate mark shall have been assigned and actually used, and of which
mark a copy or description or notice of the assigning whereof shall have
been delivered or given to the registrar as aforesaid, register a trade
mark identical with such Sheffield corporate mark, or so nearly resem-
bling the same as to be calculated to deceive :
(5.) The master, wardens, searchers, and assistants of the Cutlers' Company
shall not assign to any person a mark or device identical with any trade
mark registered under this Act, and notice of the registration whereof
shall have been given to the Cutlers' Company as aforesaid, or so nearly
resembling the same as to be calculated to deceive :
(6.) Any person to whom a Sheffield corporate mark legally belongs shall be
entitled to have the same mark registered also as a trade mark under
this Act, in respect of any particular goods or classes of goods, in the
same manner and upon the same terms and conditions in and upon
which he might have registered the same if it were not a Sheffield cor-
porate mark : ^jgj^j^^^ ^y Microsoft®
746 STATUTORY JURISDICTION.
(7.) Nothing in this Act shall prejudice or affect the rights and privileges of the
Cutlers' Company, nor, save as is otherwise in this Act expressly pro-
vided, shall any of the provisions of this Act apply to or in the case of
any ShefBeld corporate mark " : sect. 9.
See Trade Marks Eeqistration Act Rules, 46-56.
Definitions.
" For the purposes of this Act : — A trade mark consists of one or more of the
following essential particulars ; that is to say, a name of an individual or firm
printed, impressed, or woven in some particular and distinctive manner ; or a
written signature or copy of a written signature of an individual or firm ; or a
distinctive device, mark, heading, lahel, or ticket ; and there may be added to
any one or more of the said particulars any letters, words, or figures, or combina-
tion of letters, words, or figures ; also any special and distinctive word or words
or combination of figures or letters used as a trade mark before the passing of this
Act may be registered as such under this Act.
' Prescribed ' means prescribed by General Rules made in pursuance of this Act ;
and ' Court ' means any of Her Majesty's superior Courts of Law or Equity
at Westminster, or any Court to which the jurisdiction of such Courts may
be transferred, or any one or more of such Courts which may be declared to
be the Court for the purposes of this Act by such General Rules as aforesaid ;
but the provisions of this Act conferring a special jurisdiction on the Court
as above defined shall not, excepting so far as such jurisdiction extends,
affect the jurisdiction of any Court in Scotland or Ireland in causes, actions,
suits, or proceedings relating to trades marks ; and if the register requires
to be rectified in consequence of any proceedings in any such Court in
Scotland or Ireland, due notice of such requirements shall be given to the
registrar, and he shall rectify the register accordingly " : sect. 10.
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( 747 )
CHAPTER LIII.
THE COPYEIGHT OF DESIGNS ACT, 1875.
38 & 39 Vict. c. 93.
Teansfee of Powers to Commissioners of Patents.
" On and after the commencement of this Act^ all powers, duties, and authori-
ties vested in, imposed on, or to be exercised by the Board of Trade under the
Acts mentioned in the schedule to this Act shall be transferred to, vested in, and
imposed on the Commissioners of Patents for Inventions, and the said Acts shall
be construed as if the said Commissioners of Patents were throughout substituted
for the Board of Trade or the Lords of the Committee of the Privy Council for the
consideration of all matters of trade and plantations" : sect. 2.
" The said Commissioners of Patents may from time to time make, and when
made revoke and alter General Eules for regulating registration under the Acts
mentioned in the schedule hereto, and this Act, and on and after the commence-
ment of this Act any discretion or power vested in the registrar under the said
Acts shall be subject to the control of the Commissioners of Patents and shall be
exercised by him in such manner and with such limitations and restrictions (if
any) as may be prescribed by the said General Rules, and any provisions contained
in the said Acts as 'to the copies, drawings, prints, descriptions, information, mat-
ters, and particulars to be furnished to the registrar prior to registration, and as
to the mode in which registration is to be conducted by the registrar, and gene-
rally as to any act or thing to be done by the registrar, may be modified by such
General Rules in such manner as the said Commissioners of Patents may think
expedient.
" General Rules made in pursuance of this section shall be laid before Parlia-
ment within one month after they are made if Parliament be then sitting, or if
not, within one month after the commencement of the then next session ; and if
either House of Parliament resolve within one month after such rules have been
laid before such House that any of such rules ought not to continue in force, any
rule in respect of which such resolution has been passed shall, after the date of
such resolution, cease to be of any force, without prejudice, nevertheless to the
making of any other rule in its place, or to anything done in piursuance of any
such rules before the date of such resolution" : sect. 3.
" The office of registrar under the Acts mentioned in the schedule to this Act
shall cease to exist as a separate paid office, and the Commissioners of Patents
may from time to time make arrangements as to the mode in which and the
person or persons by whom the duties of registrar and other duties under the
said Acts are to be performed, and may from time to time delegate to any
such person or persons all or any of the duties of the registrar, and any person
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748 STATUTOEY JURISDICTION.
or persons to whom such duties may be delegated shall, in so far as such dele-
gation extends, be deemed to be the registrar within the meaning of the said
Acts.
" Any arrangement or delegation of duties to the clerk or other officer of the
Commissioners of Patents made by the Board of Trade shall be as valid as it
would have been if this Act had been passed at the date of such arrangement or
delegation, and the same had been made by the Commissioners of Patents " :
sect 4.
Digitized by Microsoft®
INDEX.
Note. — The Itcdics represent Forms of Orders.
ABATEMENT,
cases under recent practice in Chancery, 75-77
Judicature Bules as to : See Chanqbs of Inteeest, 75.
ABSTRACT OP TITLE,
Inquiry as to delivery of, at suit of vendor, 428
ACCOUNTS,
appropriation in, 155
bill for account, when open to demurrer, 151
Company and agent, between, 157
Contribution — Sureties — Suit by surety, 161
Suit by executors of sureties, 161
Joint liability — Deed to be cancelled, 162
when account will be directed, 162, 163
Dealings and transactions, of, 149
and for payment, 149
Special directions — Boohs prima facie evidence, 149
Surcharge and falsify, liberty to, 149
Debts and liabilities (13 & 14 Vict. c. 25, and 23 & 2A Vict. c. 38), 248
Decree for account, as to form of, 152
costs of, 153
evidence at bearing of, what necessary, 152
Executors — Sole executor deceased, 183
both executors deceased, 183
one of two executors deceased, 182
falsifying — opening — surcharging, 153
fraud, opening account on proof of, 154
interest, when chargeable in accounts, 155
Judicature Eules as to accounts and inquiries, 152
account, when, may be ordered, 150
if writ indorsed (under Order 3, rule 8), 7
mode of taking, 151
just allowances in, 154
Partnership dealings and transactions, of: See Paetnbbship, 167
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750 INDEX.
ACCOUNTS— continued.
Principal and stewa/rd, between, 156
rents and profits, of, when directed, 164
Settled accoimts, to stand, 150
to he opened, 150
with payment of costs relating to accounts set aside, 150
set-off, as to, 155
Solicitor and client, between, 156
Statute of Limitations, when not available, 151
ACTION,
dismissal of,
Proceedings, not obtaining order to carry on, 88, 89, 90, 91, 92
but present practice doubtful, 88
Statement of claim, non-delivery of, 26
Judicature Eules,
causes of, may be joined, 11
but not for recovery of land without leave, 11
commencement of, 1
consolidation of, 40
discontinuance of, on notice by pit, 19
on payment of deft's costs, 19
but no defence to subsequent action, 19
dismissal of — discovery or inspection, pit not complying with order
for, 35
interrogatories, pit not answering, 35
withdrawal of, after entry for trial, 19
ADMINISTEATION,
actions for, 214
administration decree, usual declarations in.
Will established, 178
if mil admitted, 178
if will proves itself, 178
Infomt heirs not ashing issue, 178
County Court jurisdiction in, 225
Creditor's action — Personal estate — General accounts, 178
Personal estate — Payment of pit's debt, 179
Action for pit's debt alone — Personal estate — Payment, 180
Seal and Personal estate — Inquiry as to heir, 179
Creditor's or mortgagee's action — Sale — Administration, 180
Creditor's action — Eguitable mortgagee — Seal and personal estate, 181
creditor's decree — cases as to form of, 214
establishing will, when not necessary, 212
delivery out of original will for purpose of, 213
heir-at-law, when not necessary party, 212
probate, when evidence of validity of will, 212
debts — interest on, when, and at what rate, 220
specialty and simple contract debts, 219
no priority after 1st January, 1870 . . 219
duty — legacy and succession, to be provided for, 219
default of, who chargeable, 219
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INDEX. 751
ADMINISTEATION— coniiJiwerf.
establishing will, 212
income — apportionment of, as to, 220
when payable or recoverable, 221
Legatees, trustees, and executors, actions hy — Personal estate, 181
Beal and personal estate, 182
tenant for life and remainderman — accounts, mode of adjusting, 221
General AcconuTa in Deceee,
Sole executor deceased, 183
Both executors deceased, 183
One of two executors deceased, 182
Special Inquiries in Decree,
Building contracts — Liability of testator's estate, 184
Contracts hy trustee or executm — Since testator's death, 185
Domicile, common inquiry, 189
Special inquiries, 189
With declaration — Special accounts and inquiries, 189
cases as to, 221-222
Dower — Inquiry — Sale, 187
Inquiry — Recewer, 188
Government annuity, 188
Exchange, inquiry if beneficial, 187
Ileir-at-law — Customary heir — Inquiry as to, 184
Mortgages, inquiry haw created — How paid off, 187
Occupation rent, inquiry as to, 187
Personalty — Pure and Impure — Inquiry as to, 184
Purchase hy testator — Purchase-Tnoney to be paid out of personalty —
Declaration as to realty, 186
Purchases by testator, inquiry as to contracts, 185
by testator's executors — Inquiry whether out of testator's money, 186
Sales and contracts — Inquiry as to, and disposal of purchase-money, 184
outstanding estate — decree to contain inquiry as to, 221
Further Considbeation (General Administration),
Costs — Debts — Legacies — Payment of, 193
Similar order — by schedule, 195
PuETHEB Consideration (Insufficient Estate)
Personalty insufficient — Debts — Apportionment, 199
Abatement of legacies — Apportimiment, 200
Abatement of legacies — Valuation — Sale or mortgage, 200
Abatement and apportionment of legacies — Duty — Besidue, 201, 202
Abatement of annuities — Valuation, 201
Contribution, by devised estates rateably, 204
by pecuniary legatee and residuary devisee, 204
by specific legacies and real estate, 203
by specifically devised ami descended estates, 203
Sale or mortgage of real estate — Payment of debts, 206
Hotchpot provisions — Common form, 196
Advances in excess of shares, 197
Interest on sums advanced — Incumbered shares, 197
Payments on account of shares, 198
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752 INDEX.
ADMim&TnAIIO'S— continued.
MarshaMing — Personalty exhausted ly specialty creditors, 205
Personalty exhausted by mortgagee — Simple contract creditors, 205
Mortgagee and simple contract creditors — Mortgagee partly paid
out of personalty, 205
Equities between first, second, and third incumbrancers, 205
general principle as to, 217
Mortgage, raising portions by, 207
parties, in actions for, 215
Set-off — Balance due from administratrix^ Costs, 207
ADMIRALTY COURT,
Judicature Rules as to,
appearance, default of, to actions in rem, 7 '
writ, service of, in actions in rem, 8
ADMISSIONS,
documents, admission of, no relief from proving, 57
evidence, when admissions used in, 58
infant, answer of, though containing admissions not evidence against
himself, 58
Judicature Rules as to, 57
notice of admission by either party, 57
notice to admit documents — ^Form of notice, 57
ADVOWSON,
Partition of : See Paetition, 474
Sale 0/ (under Partition Act, 1868).. 483
AFFIDAVITS,
Evidence, when may he given by, 62, 63
AGENT,
Account of dealings of, with company, 157
solicitor not to change his, without order, 494
Taxation of bill of, on application of solicitor, 510
AGREEMENT (BREACH OF),
injunctions as to, 281
ALIENS,
cases as to, 77-78
AMENDMENT,
at the hearing under recent practice, 22
Judicature Rules as to, when and how allowed, 20, 22
default of, after order obtained, 21
delivery of amended pleading, 22
APPEAL (COURT OF),
absence of a Judge of the High Court, during. Judge of, may sit for, 69
additional Judge of division, Judge of, may act as, 69 <
amendment, powers of, 70-71
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INDEX. 753
APPEAL (COURT OF)-continued.
constitution of, 68
final and interlocutory orders, on hearing of, 09
jurisdiction of, 67 (
power of single judge, 69
APPEALS,
Affirming order or judgment, 67
County Courts, from, 70X
motion, by way of, 701
special case, by way of, 702
Judicature Rules as to, 70
amendment, powers of, 70
cross appeal, notice by way of, 72
omission to give notice, 72
deposit on, under special circumstances, 7l
effect of, on proceedings appealed from, 72
evidence on, 70, 71, 72
execution, not stayed by, 72
further evidence on questions of fact, 70
setting down, mode of, 70
time for appealing, — from ex parte applications refused by Court
below, 71
from interlocutory orders, 71
from winding-up orders, 71
orders, from, made by High Court, 68
made by inferior Courts, 69
when not subject to appeal, 68
Reversing or varying order, orjvdgment, 67
APPEARANCE,
Judicature Rules as to, 5
default of, 6
by infant — by person of unsound mind, 6
mode of proceeding, after, 7
entry of, 5
time for — notice of, 6
setting aside, 6
APPORTIONMENT ACT, 1870
"annuities " — " rents" — definition of, under, 160
apportionment, what subject to, 159
when recoverable, 160
fines and renewals, of, how borne, 161
income, when not apportionable under, 220
apportioned part of, when payable or recoverable, 221
provisions of, 220
APPRENTICESHIP,
Infant, of-^Artided pupil, 117
APPROPRIATION,
accounts, in, 155
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754 INDEX.
ARBITRATION,
Agreement or submission made an order of Court, 545
Lands Clauses Act, under, 545
Arhitrator — Appointment of single, 545
of two — and umpire, 546
Costs reserved — Stay of proceedings, 547
Award, made an order of Court, 545
evidence of arbitrator, in explanation of, 549
Making, time for, enlarged, 550
notice of award having been made, effect of, 554
Bemitted, 551
when will be, 552
Set aside, 552
Lands Clauses Acts, under — Nisi, 552
time for motion, limit of, 553
whenjwill be set aside, 553
Companies Act, under, 658
costs, authority of arbitrator as to, 556
documents — Production of, not without suit, 555
failure of parties, or arbitrator, or reference, 549
Friendly Societies, Benefit and Building Acts, under, 555
Lands Clauses Consolidation Acts, under, 555
possession, as to delivery of, pursuant to award, 554
stay of proceedings, when will be directed, 548
ASSESSORS,
Judicature Rules as to, 61
ATTACHMENT,
Debtors Act, under : 8te Debtors Act, 102
interrogatories, for non-compliance with order to answer, 35
mandamus, to enforce obedience to writ of, when issued, 109
referee's order not enforceable by, 62
solicitor, against, for not giving notice to client of order for production, 35
ATTAINDER,
cases as to, 77
ATTORNEY-GENERAL,
Costs, payable to {under 18 & 19 Vict. c. 90), 247
payable by, 246
AUDITA QUERELA,
proceedings by, abolished, 96
AWARD,
Made an order of Court : See Arbitbation, 545
BANKRUPTCY,
Partnership, inquiry as to profits of, made subsequent to, 166
Proceedings after, compulsory orders to carry on, 91, 92
but present practice doubtful, 88
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INDEX. 755
BENEFIT BUILDING SOCIETIES,
Decree for account — Probable duration of society calculated, 422
Duration not calculated — Bonuses, 423
liability of member, limit of, 424
BOTTOMRY,
contracts of, to secure repayment of money advanced for repairs, &c., 412
BOUNDARIES,
Commission to distinguish-r-Delivery of possession, 488
Confusion of boundaries — Land to be set out — Rents, 488
Costs of suit, generally borne equally, 489
BOX,
Delivery out of Court of, 192
Deposit in Court of, 192
BUILDINGS,
Inquiries as to erections : See Injunctions, 269
as to pulling down, 269
Pwchase-money under Lands Clauses Act, investment of, in, 571
Restraining : See Injunctions, 282.
BUILbiNG CONTRACTS,
Charity Commissioners, sanction of, must be obtained, 541
Inquiries as to, 184
BURIAL ACTS, 1852 to 1871,
provisions of, 540
CALL,
Order for, discharged: See Companies Acts, 660
CANAL,
Receiver of, 339
CARRY ON PROCEEDINGS,
Com/monform of order to, 81
Assignment or devise of interest, on, 86
Bankruptcy of pit or deft, on, 86
Birth of party interested — Applicatiorir of pit, 83
Death of sole pit — Application of representatives, 82
of one pit — Application of other pit, 83
<fone pit — Amplication of deft after decree, 84
of one pit, accounting party, 84
of sole deft— Application of pit, 82
of one d-eft — Application of pit, 83
of deft, leaving pit his representative, 83
of deft, accounting party, 84
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3 c 2
756 INDEX.
CARRY ON PROCEEDINGS— coratrnwerf.
Marriage of female pit without settlement, 85
with settlement and trustees, 85
Order, right to obtain, 78
service of — appearance to, 88
security for costs, when given on obtaining order, 87 ■
varying or discharging, 88
compulsory orders to,
present practice doubtful, 88
orders, forms of, if recent practice adopted,
Bankruptcy/ of sole pit, 90
of co-pit, 91
of deft, 92
Death of sole pit, 88
of co-pit, 89 '
of next friend of female pit, 90
of deft, 89
Marriage of female sole pit, 90
CESTUI QUE VIE (6 Anne, c. 12),
application for order, how made, 527
Dead, deemed to he, 526
order, service of, 527
costs of, no jurisdiction as to, 528
. Production of, at parish church, 526
before Commissioners or the Court, 526, 528
tenant for life or cestui que vie proved to be alive, 528
CHAMBERS,
administration at, 216
Judicature Bules as to applications at, 74
jurisdiction of master and registrar in, 74
exceptions to such jurisdiction, 74
master may refer matters to judge, 74
order of master, appeal from, to judge, 74
at chambers, mode of appeal from order made, 74
time for appeal, 74
CHANCERY SUSPENSE ACCOUNT,
Payment into, 252
CHANGES OP INTEREST,
abatement of suit, cases under recent practice in Chancery, 75-77
alienage — attainder — effect of, under recent practice, 77
determination of interest, cases under recent practice, 81
Judicature Rules as to, 75
assignment, &c., action not defective by, 75
marriage, death, or bankruptcy, action not to abate by, 75
order to carry on proceedins?s, right to obtain, 78
service of, appearance to, 88
varying or discharging, 88
Digitized by Microsoft®
INDEX. 757
CHANGES OF mTERE&T— continued.
Mortgagor — mortgagee — of, 357
outlawry, effect of, under recemt practice, 71
proceedings, right to order to carry on, cases iimier recent practice, 78
proceedings, for Orders to carry on, See Cabbt on Pkoceedings, 81.
compulsory orders to carry ou : See Cabbt on Pboobedings, 88
but present practice doubtful, H8
Representatives, appointing, 92
dispensing with, 92
security for costs, when given on obtaining order, 87
Statute of Limitations, how change of interest affected by, 87, 88
CHAPEL,
restraining noise, interfering with services at: See Injunctions, 272
CHAEGING ORDER,
Discharge of, on shewing cause, 332
ex parte in the first instance, 333
Funds in Bank, order nisi, on, 331
in Court, order nisi, on, 330
order absolute, 331
charged with sums due in another cause, 331
Judicature Rules, as to who may make, 332
judgments, decrees, and orders, when have effect of, 332
order absolute operates from date of order nisi, 333
public companies, when against shares in, 333
CHARITABLE TRUSTS, &c., ACTS,
Sir Samuel Bomtily's Act (52 Geo. 3, c. 101), order under, 529
New Trustees, appointment of — Vontractfor purchase, 529
appeal from order, limit of time for, 530
application under, to be by petition, 530
Charity Commissioners, certificate of, required, 530
Costs apportioned between several charities, 531
Mortgage, raised ly — Animal payments on account, 531,
jurisdiction of Comrt under, 530
petition under, who should present, 530
service of, 531
sale, may be directed, 530
scheme under, 531
Attorney-General, notice to, of, 531 ■ -
CHARITABLE TRUSTS ACTS, 1853 to 1869.
Charity Commissioners, certificate of, when required, 532
costs, 536
jurisdiction of Court under, 533
exemptions from, 535
pending matter, meaning of word "pending " under the Act, 532
Roman Catholics, gilts to, 534
scheme, power of Court to make, 534
trustees, appointment and removal of, 533
death, &c., of,ffl^^HS9lSte&J^ MCrOSO/?®
order appointing, appeal ftom-^time for — mode of, £34
758 INDEX.
CHAKITABLE USES ACTS.
Deeds, inrolment of, under, 543
original, when lost or destroyed, 543
Provisions of, 543'
CHABITIES,
administration cy-pres, cases as to doctrine of, 242
Costs apportioned between several charities, 531
Attorney-Oeneral, payable by, under 18 & 19 Vict. c. 90.. 246
payable to, 246, 247
Charged on trust property and raised by sale or mortgage, 246
corporation guilty of breach of trust, not entitled to any costs, 247
heir-at-law, when entitled to, as between solicitor and client, 247
Mortgage, raised by, 531
next of kin, when entitled to, as between solicitor and client, 247
pure and impure personalty, when costs paid pro rata, 248
Relators, of, beyond costs of suit, 245
relator, when entitled to, as between solicitor and client, 247
Gifts to Charities — Preliminary inquiries as to, 226
Administration without prejudice to validity of, 226
Objects of public utility, declared charitable and within Act, 230
construction of, as to, 237
Declared void, 227
objects being indefinite, 227
Land, as to, declared void — Abatement of legacy proportionately, 228
Some void — Some valid — Repair of monument — Vatdt, dc, 228
with apportionment of costs, 229
income, increase of — surplus of — oases as to, 240
Inquiry as to charities referred to in testator's will, 227
Lease declared void — Accmnt of rents — Occupation — Costs, 233
Accounts — Lasting improvements, 234
Leases of, inquiry as to — Future leases to be at rach rents, 234
duration uf, founder's intention as to, when observed, 242
rents of, founder's intention as to not raising, when not followed, 242
Statute of Limitations, when bar to a suit to set aside, 243
term of, 242
validity of, when question of, barred, 243
Marshalling — Pure personalty reserved for charity, 235
money belonging to, not usually invested in land, 241
Mortmain Act, provisions in, 236
exceptions fiom, 237
Rents and profits of whole estate declared applicable — Account, 231
of part of estate — Surplus rents apportioned, 232
subject to contribution — Repairs, &c., 232
Inquiry as to — Fines — Letting, 244
Scheme, common decree for, 243
New trustees — Accounts and inquiries, 24;!
Adoption of, which has been filed, 244
Set forth in schedule, 244
alteration of, when permitted, 245
corporation, when fund paid to, without scheme, 244
funda, when no legal hands to rpoive, how dealt with, 245
Srammar sc\i<Bi^ZeekTb^(Miht&SSi&@l&i, &c., 245
INDEX. 759
CHARITY COMMISSIONERS,
orders of, as to enforcing, 535
CHURCH BUILDING ACTS AMENDMENT ACTS,
Oifiit, inquiry as to— And if apportionment proper, 537
Appm-tionment of, 538
Costs raised by sale or mortgage, 538
new parish, where district has become, 540
provisions of, 539
testator's primary purpose is regarded, 340.
COLLIERY,
Jieceiver of— Debts to be put in suit, 337
COMMISSIONERS,
Judicature Rules as to, 61
COMMITTAL,
contempt of Court : for Orders for. See Contempt ok Coukt, 104
Debtors Act, under : See Debtors Act, 105
COMMON, RIGHTS OP,
Enclosures — Dted of arrangement, 265
COMPANY,
injunction against, when may be obtained, 323
interrogatories, delivery of to, 28
trespassers, when restrained as, 323
COMPANIES ACTS, 1862 and 1867,
appeals — mode of — time for, 677
arbitration under, 658
assets, administration of, 640
advertisement of petition, 649
of order to wind up, 651
Call order discharged, 660
compensation on sale or transfer of business, 658
contributories, settling list of, 663
Absconding, seizure of goods of, 681
contributory, definition of, 666
death, bankruptcy, or marriage of, effect of, 666
costs, at hearing, in discretion of Court, 652
general rule, when winding-up order is made, 652
when petition is dismissed, 653
oflBcial liquidator, when personally liable fur, 654
priority of, when assets insufficient, 654
security for, when directed, 652
if petitioner out of jurisdiction, for ^00. .652
if a limited company, for probable amount of costs, 052
but not required if company pit in cross suit only, 652
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7A0 INDEX.
COMPANIES ACTS, 1862 and 18<i7— continued.
County Court, what proceedings taken in, under, 646
appeal from, 673
transfer to, 673
Court, meaning of expression, " The Court,'' 645
debts, unable to pay its, when company deemed to be, 644
proof of — value of— how estimated, 679
directors, unlimited liability of (under Act 1H67), 665
disposition ,of property by company, when void, 678
documents, production of, under, 680
enforcement of orders, how effected, 681
in Ireland and Scotland, 681
examination of persons, power as to, 680
execution creditor^ when allowed to sell property seized, 670
foreign companies, 644
inspection of books and papers, 678
Liability of members — A. and B. list (sect. 38), 662, 663
life assurance companies, as to winding up, 683
liquidator — official, as to appointment of, 654
' costs, when personally liable for, 654
powers of, 656
removal of, 655
salary of, 656
security of, and mode of giving, 655
liquidator — provisional, as to appointment of, 654
under winding-up under supervision, 676
lAst, Contributory placed on, 659
meetings, when directed by Court, 672
notice of, — time for, 672
petition, who may present, 646
advertisement of, 649
after offer of payment of debt, effect of, 647
concurrent, effect of, 6i8
service of, 650
title of, 648
verification of, 651
enlarging the time for, 651
withdrawal or dismissal of, by petitioner, 642, 647
policies and annuities, valuation of, 679
Possession, sheriff to give up to liquidator, 667
Proceedings, restraining legal (sects. 85, 87, 87, 163, 201), 667
Stay of windiiig up (sect. 89), 671
Voluntary winding-up, 668
when directed — effect of, 669
Megister, rectification of (sect. 35), 659
with inquiry as to damages, 659
return of deposit waived, 659
mode of rectifying, 662
when will be rectified, 660
Reduction of capital, order (under 1867 Act, sect. 11), 686
Creditors' consent dispensed with (sect. 14), 687
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INDEX.- 761
COMPANIES ACTS, 1862 and 1867— continued.
Reduction of capital, order {under 1867 Act, sect. lX)—cmtinued.
addition of words " and reduced " when necessary, 688
discontinuance of, time for, 692
application, mode of, 688
certificate of chief clerk of result of settlement of list, 691
costs of proof, 691
creditors, list of, — opposing — not consenting, 688, 6S9
neither assenting nor disseuting, 6d9
verifying list of, 690
debts, notice to prove, 691
lessor, rights of, as to future rent, 689
notice of list to creditors, 690
publishing and verifying, 691
petition for, how intituled, 689
hearing of, time for, 692
who may appear at, 692
presentation of, notice of, to be advertised, 690
order on, consents of creditors required to, 692
registration of, notice of, to be advertised, 693
registration, certificate of, 693
Sale of property taken in execution hy liquidator, 668
special resolution, definition of, 641
Stannaries Court, when proceedings taken in, 646
stay of proceedings, 672.
Winding-up, by the Court, compulsory order, 640
Execution creditor, slibject to rights of, 640
Stay of, 668, 671
order for, when may be made, 641
not if petitioner is in arrear with calls, 644
not if debt dispu'ed, 643
not after resolution regularly pissed to wiud up voluntarily, 642
Winding-up subject to supervision (sects. 147, 152), 675
when may be made — commencement of, 675
winding wp, voluntary, when may be made, 673
commencement of — effect of, 673
costs of, 674
no bar to right to compulsory order, 674
winding up unregistered companies (under sect. 199), 681
company, when, liable to order for, 682
coutributories, who deemed to be, 683
definition of term, "unregistered company," 681
proceedings, as to restraining, 683
COMPROMISE OF SUIT,
persons under disability;, by, jurisdiction of Court as to, 137
CONCURRENT WRIT,
Service of, out of ' the jurisdiction, 4
CONDUCT OF SALE,
who entitled to, 460
Digitized by Microsoft®
762 • INDEX.
CONFIDENTIAL COMMUNICATIONS,
letters, right to read, but not to publish contents of, 314
trade secret. Court will not restrain person from divulging, 314
unless such person has entered into contract, 314
CONFIRMATION OF SALES ACT (25 & 26 Vict. c. 108),
application, mode of, 694
•who may make, 694
Order for sale — Exception of minerals, 694
petition, parties to, 695
powers of sale and exchange, provisions as to, 694
remaindermen, service on, when dispensed with, 695
CONTEMPT OF COURT,
Committal — Order nisi, 101
order absolute, 104
on notice, 104
power of, by whom exercised, 106
publishing comments or evidence pending trial, for, 10.^
violent language, for using, 104
service of order for, generally personal, 105
substituted, may be ordered, 105
prisoner, discharge of, 105
upon terms, 105
CONTRACTS,
Inquiry as to sales, and disposal of purchase-money, 184
Purchaser, of, confirmed, 464
rescinded, 433
testntor by, inquiry as to, 185
Testator's executors, by, since testator's death, 185
Testator's money, inquiry if purchased out of, 186
CONTllIBUTION,
by devised estates rateably, 204
pecuniary legatee and residuary devisee, 204
specific legacies and renl estate, 203
specifically devised and descended estates, 203
sureties : Hee Account (Contribution), 161
CONTRIBUTORY,
bankruptcy, death, or marriage of, effect of, 666
definition of, 666
See Companies Acts.
COPYHOLD ACTS (1841, 1843, 1852, and 1858),
Compensation money, investment of — Tenant for life, 558
application of, on petition, 559
Crown manors, if aiising from, notice required, 560
costs, who entitled to, 560
Evfranchisement, iiiijuiry if beneficial, 558
Payment into Court, when may be made, under, 559
Digitized by Microsoft®
INDEX. 703
COPYRIGHT,
designs in, term of, 297
dramatic and musical, 291
dramatic piece, meaning of words, 292
pantomime, witliiu the statute, 292
literary, limit for bringing action for, 290
assignment of, must be in writing, 290
duration of — meaning of, 289
reaistration of, when necessary, 290
subjects of, what are, 289
international — in books, 293
„ „ dramatic pieces, 291
original paintings, drawings, and photographs, in — limit of, -96
registration necessary, 296
prints, engravings, and etchings, of, limit of, 294
lithographs. Act extends to, 295
photography, also to copying engravings by, 295
sculpture, oasts, and models, in, limit of, 295
registered, may be, 296
when extended, 296
COPYRiaHT OF DESIGNS ACT, 1875,
Provisions of, 747
transfer of powers to Commissioners of Patents, 747
CORPORATIONS,
costs, when not entitled to, 247
decree, how enforced against, 101
Sequestration against — Nini — Absolute, 100
See also Enforcing Orders and Judgments.
COSTS,
administration suit — out of estate, who entitled to and when, 222-224
apportionable, when, 224
Appoiiionment of, between real estate and personal estate, 208, 224
Charities, betneen several, 531
Attorney-General, payable by and to, 246, 247
Comiianies Acts, under, 652
Copyhold Acts, under, 560
Debtors Act, held to be a debt within, 103
Defence Acts, under, 563
disclaiming parties, of, 376
bearing, at, includes costs of carrying out decree, 153
Incumbered shares — Taxing Master to distinguish, 209, 210
entitled to one set only, 225
infant, of, in foreclosure suit, 1 1 3
in partition suit, 113
Merchant Shipping Acts, under, 328
mortgage, costs raised by, and if necessary, sale, 21 1
mortgage suits, in, 374
prolix forms of, writs, of, and indorsements, 1
Digitized by Microsoft®
764 INDEX.
COSTS— continued.
patents, validity of, in question, 307
security for, on obtaining orders of revivor under recent practice, 87
incumbrancer by, on opening foreclosure, 405
Set-off, of costs with ialance, due from administratrix, 207
Settled Estates Acts, under, 628, 632
COUNSEL,
Assignment of, to prisoner, 637, 638
COUNTER CLAIM,
delivery of, 18
COUNTY COURT ACTS, 1865 and 1867,
appeal from County Court, 701
motion, by way of, 701
special case, by viray of, 702
time for, 702 '
dismissal of suit, where no jurisdiction to try, 701
jurisdiction, in what cases Court has, 225, 699
Transfer from County Court to High Court, 226, 700
from High Court to County Court, 700
application for, mode of, 700
no appeal from order made on, 701
security for costs on, when directed, 700
Be-iransfer to County Court, 700
CREDITOR,
Actions by — Decrees in: See Administration (Creditor), 178
Debt of, order for payment of, 180
CUOWN,
manors, dealing with enfranchisement moneys of, 560
mprtgagees' interest, when partly vested in the, 367
CUSTOMARY HEIR,
Inquiry as to, 184
CY-PRi;S,
administration in charities, 242
DAMAGES,
Inquiry as to, £62-300
Judicature Rules as to payment into Court in satisfaction of, 7
DEALINGS AND TRANSACTIONS,
Account of, 149
DEBT,
interest on, when computed and at what rate, 220
Urderfor payment of: Hee Administration (Further consideration), 193
under £10, to solicitor, 195
satisfaction of, by payment into Ccurt, 7
specialty and simple contract, 219
no priority alter tlie 1st of January, 1870, wlicn, 2 19
Digitized by Microsoft®
INDEX. 763
DEBTS AND LIABILITIES (13 & 14 Vict. c. 25 ; 23 & 24 Vict. c. 38),
Account of (under recent practice), 248
contingent liability, appropriation of sum to meet, 250
order, when might be made, and mode of application, 249
when might not be made, 249
Judicature Rules as to practice in future, .250
DEBTOR,
Judicature Rules as to attachment of debts of, 110
examination of, 110
See Judgment Debtor.
DEBTORS ACT, 1869,
Attachment (;under sect. 4), 102
Solicitor, against, on taxation of client's hill, 102
costs, held to be a debt, 103
possession, money need not have been in trustee's sole, 103
solicitor, not liable as unsuccessful litigant only, 103
trustee, liability of, although money, spent, 103
Committal (under sect. 5), immediate payment, 105
Payment hy instalments, 106
discharge, on, prisoner entitled to certificate, 107
duration of, limit of, 106
further default, on, may be attached again, 107
DEEDS,
Delivery out of Court of, 466
Jnrdment of, 543
Charitable Uses Acts, under, 543
DEFAULT OP PLEADING,
Dismissal for want of prosecution after, 26
Judicature Rules as to default, 26-27
by pit — ^non-delivery of statement of claim, 26
non-delivery of reply, or demurrer, &c., 27
by deft — non-delivery of defence, or demurrer, 27
by person not party, 27
DEFENCE,
Judicature Rules as to, 18
delivery of, time for, 18
of counter-claim, 18
DEFENCE ACTS, THE (1842-1873),
application, mode of, 563
Compensation money — Investment — Tenant. for life, 561
Interest upon, when payable, 563 . ,
Payment out to trustees, upon same trusts, &c., 561
Betaintr out tf, for permanent improvcTnenls, 561
costs, payable by secretary of state, 563
Digitized by Microsoft®
766 INDEX.
DEFENCE ACTS, THE (,1842-lii7 3)— contimed.
payment into Court, when made under, 562
expenses consequent upon, for, amount to bo added, 563
when made without such addition, 563
secretary of state, as to sale by, subject to conditions, 563
service on, not necessary, 563
trustee to receive purchase-money, appointment of, 562
DELIVERY (WEIT OP),
Judicature Rules as to, 109
DELIVERY OUT OF COURT,
of Box : See Paymaster-General, 192
DEMURRER,
allowed — whole claim, 23
part q/ claim, or defence, 23
costs of, 25
Judicature Rules as to, 24
combination of demurrer and defence, 24
costs of, 25
entering of, for argument, 24
default of, 24
mode of, 25
form of demurrer, 24
pleading and demurring, 24
overruled — whole claim or defence, 23
costs of, 25
pleadings, pending demurrer, not to be amended, 25
DEPOSIT m COURT,
Hox of, containing Jewelry, &c., 192
Exchequer Bills, of: See Paymaster-General, 191
DEPOSIT-MONEY,
Lands Clauses Acts, under, payment out of, 577-585
DERIVATIVE MORTGAGE,
Commxm order : See Mortgages, 399
DETERIORATION,
inquiry as to, 363
DISCLAIMING PARTIES,
costs of, 376
DISCONTINUANCE OF ACTION, .
Judicature Rules as to, 19
DISCOVERY AND INSPECTION,
Judicature Rules as to, 28-35
Digitized by Microsoft®
INDEX. 767
DISENTAILING DEED,
Lands Clauses Act,, under, when required, 581
DISMISSAL,
Action, of, Judicaiure Rules as to, 26, 35
Orders for: See Action (Dismissal of), 26, 88, 89, 90, 91, 92
DISSOLUTION,
Partnership, of, Decree fur : See Partnership, 167
receiver or manager, appointment of, after, 174
when will be directed, 175
DISTRICT REGISTRIES,
accounts and inquiries, when directed by judge, 56
documents, production of, 56
how established, 53
Judicature Rules as to commencing proceedings in, 53
action, removal of, from, 55
appeal from, to judge, 54
authority of district registrars, 54
costs, when taxed in registry, 54
• writs of execution, when issued, from, 54
power of district registrars, 53
proceedings, what may be taken in, 53
DISTRINGAS,
Judicature Rules as to issuing, 330
discharge of, 330
limit of, 330
DOCKS,
Receiver of, 340
DOCUMENTS,
Inspection of, admitted or referred to, 30
Judicature Rules as to productioir by <irder, 30
afBdavit, form of, 30
notice to produce, 31
inspection of documents refeiTod to in notice, 31
time for inspection, default of, giving notice of, 31
order, application for, how made, 31
non-compliance with, 35
service of, 35
solicitor to give notice of, to his client, 35
privileged, sealing up, 32
Production of, on oath, 29
right to, cases as to, 32
proof of, necessary, although admitted, 58
DOMICIL,
cases as to, 221, 222
Common inquiry as to, 189
special, 189
Digitized by Microsoft®
7eS INDEX.
DOWER,
commission may be directed to issue, 490
costs, not generally given on either sidf, 491
Inquiry as to, 187
Inquiries as to land — Possession, 489
Bents and profits — Oceujiation rent, 490
widow, when not entitled to dower, as to land, 491
DRAINS,
Making of, restraining : See Injunctions, 276
DUTY,
legacy and succession — Court to provide for, 219
default of, who chargeable with, 219
ELECTION,
Settlement and Will, 188
Infants — Inquiry as to election, 188
Testator's Widow — Inquiry, 189
ELEMENTARY EDUCATION ACT, 1870 (33 & 34 Vict. c. 75),
Charitable Trusts Acts, 1853 to 1869, application of provisions of, to, 534
provisions of, 534.
transfer of elementary school to School Board, 534
ENCLOSURES,
Common, rights of — Deed of arrangement, 265
Inclosures — Injunction, 264
ENFORCING ORDERS AND JUDGMENTS,
Charity Commissioners, of, 535
Habeas, when prisoner in custody, 99
Judicature Rules as to, 94-96
existing mode of enforcing orders not affected by, 96
judgments and orders, mode of enforcing, 94
for doing or abstaining from acts other than payment of money, 94
for payment of money into Court, 94
for recovery or delivery of land, 94
for recovery of property other than land, 94
where relief is subject to condition, 94
partners, how execution issued against, 95
persons, not parties, enforcing orders against, 96
sequestration, without order, 97
writ of delivery, of property other than land or money, 109
writ of execution— definition of, 95
for what time in force — when may issue, 95
order of issue not affected, 96
writ of fieri facias and elegit, by, 96
how issued, 97
writ of possession, judgment for recovery of land may be enforced
by, 107
alias writ, when may issue, 108
Digitized by Microsoft®
INDEX. 769
ENFORCING OEDBRS AND JUDGMENTS— conimwed
Sequestration, order for, 98
Corporation, against, nisi, 100
Alsolute, 100
Serjeant-at-arms, after order for, 100
whether order now necessary is doubtful, 98
Serjeant-at-arms, order for, 98
Sheriff, committal of, nisi, for not returning writ, 108
Absolute, 109
Turn over, prisoner brought up by Serjeant-at-arms or habeas, 99
BNPEANCHISEMBNT,
CopyJwld Acts, tmder, inquiry if beneficial, 558
Pu/rchase-mmiey, investment of, in, 568, 569
settled estates, of, and costs thereof paid out of proceeds of sale, 624
EQUITABLE MORTGAGES,
decrees : See Mobtgagbs (Equitable), 380
ERROR,
proceedings in, abolished, 70
EVIDENCE,
answers to interrogatories, when used in, 35
infant, answer of, although containing admissions, not evidence against him-
self, 58
Judicature Rules as to, 62
action, at trial of, witnesses examined vivd, voce unless, &c., 62
affidavit, as to evidence by, 63
cross-examination on, 63
printed, if taken by, 63
time for filing, 63
motion, petition and summons, on, may be given by affidavit, 62
EXCEPTIONS,
bills of, abolished, 70
EXCESS IN VALUE,
when good defence by purchaser to vendor's suit, 448
EXCHANGE,
Inquiry if beneficial, 187
EXCHEQUER BILLS,
Deposit in Court of, 191
EXECUTION,
stay of, on ground of facts arisen too late to be pleaded, 96
writ of, definition of, 95
writ of delivery, after, 110
Digitized by Microsoft® 3 d
770 INDEX.
EXECUTION CREDITOR,
when allowed to sell property of company seized previous to winding-up
order, 670
EXECUTORS,
Accoimts agamst : See Aocountb (Executors), 183
FALSIFYING ACCOUNTS,
Liberty to surchargefmid faisi/y, 149
settled accounts in, 1.^3
FEME COVERT: See Maebibd Women, 134
FIERI FACIAS,
writ of. Judicature. Rules as to, 96
FORECLOSURE,
Absolute, 404
Decrees : See Mortgages (Foreclosure), 350
infant, costs of guardian ad Utem of, 113
decrees, generally nisi, against, 118
equity of redemption of, no vesting order necessary after sale, 608
FRAUD,
opening account on proof of, 154
FRIENDLY SOCIETIES, BENEFIT AND BUILDING ACTS,
arbitration, as to referring matters to, 555
award, enforcing, 555
FURTHER CONSIDERATION :
Oeneral administration — orders for, 193
Irmiffioient estate, 199
See Administbation (Further Consideration)
GARNISHEE,
Judicature Rules as to : See JuDGMEirr Debtob, 110
GOVERNMENT ANNUITY,
Purchase of, 195, 575
GRAMMAR SCHOOL AND ENDOWED SCHOOL ACTS,
application, mode of, 526
definition of " giiammar school," 526
petition, service of, 526 t,
provisions under, 636
GUARDIAN,
Settled Estates Acts, tmder, 617
when may be applied for, 618
GUARDIAN AD LITEM,
Infant, to, 112
Digitized by Microsoft®
INDEX. 771
GUARDIAN OP THE PERSON AND ESTATE,
Infant, of: See Infant (Guardian), 113
HABEAS,
Order for, 99
HEIR-AT-LAW,
Inquiry as to, 179, 184
HBIR-LOOMS,
Receiver of, 338
HOTCHPOT PROVISIONS,
Advances — Common form, 196
Advances in excess of shares, 197
Incumbered shares — Interest on sums advanced, 197
Payments on account of shares, 198
INCOME,
as to apportionment of, 220
INCUMBENT,
Service by, improperly appointed, restraining : See Injunction, 322
INCUMBERED SHARES,
Costs of, 209
INCUMBRANCES
Inquiry os to, 362
Purchase-money, invested in discharge of, 570
INFANTS,
Apprenticesh^ of — Articled pupil, 117
costs of, in foreclosure suit, 113
in partition suit, 113
decrees against, generally nisi, 118, 119
Election, inquiry whether benefidaX, 188
Foreclosure against infanfs estate : See Mortgages (Foreclosure in particular
cases), 400
foreign country, when subjects of, 117
Ireland and Scotland deemed to be, 117
Guardiam ad litem, deft's application, 112
Solicitor appointed, pit's application, 112
official solicitor is usually appointed, 113
Ouardian of person and estate, 114
of person and maintenance, 113
custody and maintenance, rules of equity to prevail, 114
father's ability to maintain, when considered, 115
mother's ability, not considered, 115
removal of guardian, as to, 115
Digitized by Microsoft® 3 d 2
772 INDEX.
INFANTS— conimMerf.
Heirs, not asking issue, declaration in decree, 178
Judicature Rules as to, 112
actions by and against, 112
guardian, mode of appointing, to, 112
writ, mode of service of, upon, 112
Jwriadietion, to take infant out of, 116
Temporary visit abroad, 116
leases of, or by (under 11 Geo. 4 & 1 Will. 4, c. 65), 123
See Peopbett-Law Amendment Act
Partnership business, dissolution of, inquiry if beneficial to, 166
Propriety of suit, inquiry as to, 111
irregular after decree made, 118
Testamentary guardian, petition against — Inquiries, 116
control of Court, subject to, 114
removable by consent only, except upon bill filed, 115
INFANTS' CUSTODY ACT (36 & 37 Vict. c. 12),
Special order, imder, 126
INFANTS' MAREIAGE ACT (4 Geo. 4, c. 76),
Father abroad — Order under, 128
Father nan compos — Previous inquiry, 128
Forfeiture declared — Inquiry — Settlement, 128
Fund settled by the order, 129
Penalty under 23rd section, no jurisdiction to mitigate, 131
INFANTS' BELIEF ACT, 1874 (37 & 38 Vict. c. 62),
provisions of, 132
INFANTS' SETTLEMENT ACT (18 & 19 Vict. c. 43),
Infcmt ward — Liberty to execute settlement and intermarry, 131
Infant, not ward — Settlement approved — Infant to execute, 132
petition necessary although suit pending, 132
propriety of marriage, when not inquired into, 132
settlement, when not compulsory, 132
INFANT— WARD OF COURT,
Alleged marriage — Parties to attend judge, 119
Conniving parties, restraining, 122
Committal of, 122
Husband, examined, committal of, 122
Discharge of, 122
Jurisdiction, to bring infant within, 119
Marriage of, inquiry as to — Settlement, 120
Settlement, terms of, settled by Court, 120
Strict settlement, 120, 121
Restraining — Also intercourse omd communication, 121
when invalid, valid marriage may be directed, 123
Digitized by Microsoft®
INDEX. 773
INJUNCTION,
agreement, breach of, when not enforced, 284
Assignment or underlease, restraining, 282
Bell-ringing, restraining, 278
benefice, when presentation to, may be restrained, 325
Book, specified portion of, against publishing, 287
Booh stalls — Advertisements, 282
Building, from, continuing, 282
Chapel, retraining noise interfering with services of, 272
Circus, 278
Coal, fireclay, &c., against working for — Inspection, 263
Company, declaration hy, of forfeiture of shares, 323
injunction against, when may be obtained, 323
trespassers, when restrained as, 323
Designs, illustrated catalogue of, 288
Mantilla shawls, with pit's design, sale of, 297
Woven fabrics, applying pit's design to — Delivery up of articles, 296
Dictionary, topographical, publishing, 286
Directories, publishing, 286
Advertisements therein, excluding, 286
Drains, making of, 276
Dramatised novel, against publishing, 292
Etchings, from exhibiting, 294
Impressions of, delivery up of, 294
Essay — Against publishing selections from poem, 287
Delivery up for cancellation — Damages, 288
Handbook, 287
Illustrated book, against publishing, 287
Highway, to remove water. pipes from under, 263
Incumbent, improperly appointed, 322
Interim order, ex parte, 251
on notice, 251
Injunction, ex parte, 251
on notice, 251
Lease, granting of, 321
renewal of, 321
Light and air — Injunction — Inquiry as to buildings erected, 269
Inquiry as to erecting new buildings, 269
Injury completed — Damages, 270
Removal of buildings erected, 271
injury must be substantial, 273
expert, reference to, when improper, 274
removing, difBculty of, 274
obstruction of, what constitutes, 272, 273
right to, when absolute, 272
mandatory, when granted, 253
delay, effect of, on, 254
Magazine, publisher of, 281
Map, sale of—Ddivery up of unsold copies — Damages, 288
Medicine, use of recipe, 313
Digitized by Microsoft®
774 INDEX.
mJUNCnOTS— continued.
Merchant Shipping Acts, restraining sale of ship, 326
Music and flreworhs, 278
Mines — Ooal — Inquiries as to coal gotten, 261
Digging — Inspection — Acanmt, 256
lessee, when may work open mines, 259
buildings by, without consent of landlord, 260
railway company on purchase of land, when not entitled to, 259
Minerals, working, to damage of railway, 280
Copyholds, under — Account, 257
Kew^Kiper, publisher of, 281
Name or style of, using, 308
Undertaking to change, 308
NooBious vapours, 270, 271
nuisance, disorderly crowd, when deemed, 279
previous knowledge, when relief not debarred by, 268, 269
public companies, by, 268
slight or temporary, when, 268
weekly tenants, when cannot be restrained, 260
Opera, professional services at, 281
Opera magazine — Pianoforte music, 291
Partnership business, from removing books and papers, 283
Cheques, from drawing — Bills of exchange, &c., 283
Patents, use of — Inquiry as to, profits — Damages, 298, 299-302
perpetual injunction, when entitled to, 30G
Validity of, certificate that, came in question, 299
Payment into Court, on — Chancery suspense account, 252
possession, person in, when not interfered wi^h by Court, 267
when Court will interfere on behalf of, 267
Preachers, interference with, 322
Public recreation ground, against use of, for fairs, 321
Railway company, against paying costs of suit not instituted by it, 318
Dividend, declaration of, by, 319
Payment of, by, 318
Extension of railways, applying funds in, 318
hand, compulsory purchase of part only, 314, 315
not bona fide required for undertaking, 315
Use of, until compensation paid, 316
Manufacture qf locomotives, &c., by, for sale or hire, 320
Railway station, non-erection of, by, 315
Treat, undertaking to, injunction refused, 317
Regatta, hdding of, 317
repairs, when granted for neglecting, 258
Bights of Common — Right of Pasture — Inquiry as to buildings, 265
right of support — ^adjoining houses, 280 ; party walls, 230
Minerals, in working, 280
Mines — Leases, 262
Railway, under, 280
Right of way, obstruction to, 279
Sewers, from opening, 276, 277
Digitized by Microsoft®
INDEX. 775
INJUNCTION— eon«m«ed,
Solicitor, against employing certain, 313
shooting, right of, when no restraint against cutting timber, 258
timber-trees — Cutting of, when restrained, 258
if felled, damage to inheritance alone measured, 259
Trees — Ornamental — Toung trees — Against cutting down, 254, 255
Trade btmness, setting up or carrying on, 282, 283
Secret of firm, using, 283
Style of firm, assuming, 283
Trade-marks, using, 309, 310
jurisdiction of Court as to, 311
profits, accounts of, when directed, 312
Trade secrets, divulging, will not he restrained, 314
Trespasi — Buildings encroaching — Swfaee water, 260
public companies, by, when restrained, 267
threatened, 260
when not destructive, will not be restrained, 267
undertakings when required, — mode of, in vacation, 252
waste, against, actual violation of right must be proved, 257
inquiry as to, when granted, 259
mortgagee in possession, by, 258
particular title must be shewn, 257
reasonable diligence must he used in applying for, 257
Water, diversion of stream, pending payment of purchase-money, 274
River, potlution of, by making drains, 274
right to, what constitutes, 277
of proprietor of adjoining land, 277
Bunnvng water, pollution of — Diversion of, 274, 275
vrith inquiry as to damages, 275
Stagnant water, 276
Wife's separate estate — Interference with, 266
INROLMBNT,
Deeds, of, under Charitable Uses Acts, 543
INSPECTION,
Documents, of, admitted, or referred to, 30
seal rip, virith liberty to, 30
Mines, of working of, 263
mortgagor when not entitled to, 34
Patent, of, 300, 301
when not directed, 306
INSDEANCB PREMIUMS,
Aax/wnt of, 363, 414
mortgagees, allowance to, for, 372
INTEREST,
account, when chargeable in, 155
Digitized by Microsoft®
776 INDEX.
INTERNATIONAL COPYRIGHT,
books, in, 291
dramatic pieces, in, 293
INTERROGATORIES,
Judicature Rules as to, 28-35
answer to, to be by affidavit, 29
when to be printed, 29
delivery of, time for, by pit — by deft, 28
body corporate or company, to, 28
objection or omission to answer — insufficient answer, 29
propriety of, inquiry as to — costs, how borne, 28
struck out, if scandalous or irrelevant, 28
ISSUES,
Judicature Rules as to preparation and form of, 47
Questions of facts — Orders for trial of, in Chancery, 41, 42, 43, 44
New trial of^Order in Chancery, 46
patents, trial of issues as to, 307
trial of, may be postponed, 52
Decree, after, 47
motion for judgment, after, 52
JOINDER,
Judicature Rules as to joinder of causes of action, 11
husband and wife, claims by and against, 11
trustee in bankruptcy, claims by, when not without leave, 11
recovery of land, not with action for, without leave, 11
title to land, an action to establish, leave when required, 12
JOINT STOCK COMPANIES ARRANGEMENT ACT, 1870,
provisions in, 693
JUDGE,
absence or illness of, provision for, 69
tenure of office of, 68
JUDGMENT,
by default, how set aside, 27
enforcing : See Enforcing Orders and Judgments, 94
motion for judgment, 64
Judicature Rules as to, 64
JUDGMENT CREDITORS,
Elegit, in possession hy — Inquiries and accoimts, 388
equitable mortgagee, an, held to be, 390
foreclosure, at suit of, may be granted, 390
Inquiries, at suit of, 388
Beceiver — Account — Sale, 389
Successive foreclosures, 388
Mortgagee, at Suit of — Judgment Creditors defts, 389
Digitized by Microsoft®
INDEX. 777
JUDGMENT DEBTOR,
Judicature Rules as to attacliment of debts, 110
examination of debtor — production of books, 110
garnishee, debts from, attached, 110
default of payment by, or dispute of debt by, 110
discharge of, by payment or execution. 111
execution against, 111
liability of, disputed by, 110
service of order attaching upon, to bind debts in hands of, 110
JUDGMENT DEBTORS ACT (27 & 28 Vict. c. 112),
delivery of land in execution, 697
execution, writs of, how registered, 697
Inquiries, as to Icmds extended, 696
judgment, what term includes, 697
. order for sale, how obtained, 697
notice of, on whom to be served, 698
who bound by, 699
Sale without inquiries — Railway Company, 696
JURISDICTION,
foreign countries, Ireland and Scotland deemed to be, 117
Infant, to take, out of: See Infant, 116
JURY,
Oath, to jury, form in Chancery, 50
to usher, on jury retiring, 50
to witness — 50-^having conscientious objection, 50
special jury, if required, order to contain direction for, 43
no appeal from order for, 49
Verdict of, mode of giving in Chancery, 50
View by, order for, 51
JUST ALLOWANCES,
in accounts, 154
LAND,
Compulsory purchase of part only, restraining, 314, 315
railway company, restraining, use of, by,. 316
See Injunctions.
LAND TAX,
mortgagees, allowance to, for, 372
Eedemption of, investment of purchase-moriey in, 569
LAND TRANSFER ACT, 1875,
abatement, proceedings pending registration not subject to, 722
appeals-, 739
Digitized by Microsoft®
778 INDEX.
LAND TRANSFER ACT, 1S7 5— continued.
bare trustee, when compelled to convey, 729
cautions against entry of land on register, 732
against registered dealings, 730
costs — disobedience to order of Registrar, 734
Crown lands, 732
conditions annexed to registered land, 737
Court, description and powers of, 740
dower, notice of estates in, 730
disclosure of instruments and facts, 734
inhibition against registered dealings without order, 731
fraud, 740
land registry, establishment of, 719
freehold land, 719
leasehold land, 720
leaseholds, separate register for, 720
leases, notice of, 729
married woman — ^infants — ^lunatics — donsent of, 738
notices, as to, 738
production of deeds, 734
register, rectification of, 739
inspection of, 740
registrar, disobedience to orders of, 734
registration, who may apply for, 719
effect of, 720
lands, of, of different tenures, 733
part owners, of, 733
what may be registered, 736
restrictions, power of registered proprietor to impose, 731
rules under the Act as to, 722-740
cancelling of charges, 725
determination of lease, 723
discharge of incumbrance, 723
examination of titles by registrar, 723
mortgage of registered land, 724
possession, adverse, 723
priority of charges, 725
proprietor of charge, right of entry of, 724
right of foreclosure of, 725
right of sale of, 725
transfer of charges, 727
transfer of freehold land, 725
effect of, 725
transfer of leasehold land, 726
effect of, 726
transmission of land and charges, how registered, 728
title, doubtful questions arising on, 735
trustees, power of, to sell, 733
Trustee Act. 1850, application of, 737
unregistered dealings with registered land, 729
Digitized by Microsoft®
INDEX. 779
LANDS CLAUSES CONSOLIDATION ACTS,
ArUtration under, agreement for, made an order of Court, 545
Compensation under sect. 1^— Inquiry, 574, 582
Fines, &c., of c^lwlds, 574
Subsequent order, after inquiry, 575
Injury, inconvenience, *c., 574, 582
Leases for lives, or years, 575, 582
Leaseholds, fm; 576
deficiency when made good out of corpus, 582
Let at less than rack rent (sect. 74), 576
mode of ascertaining, 582
New road, for expenses of, 574
Costs — under sect. 80 .. 577, 583
Where several companies, 577, 583
under sects. 81-83 .. 578, 585.
Deposit money, payment out of, 577, 585
landowner when entitled to appear, 585
disentailing deed, when required, 581
Interim investment in consols, &c. — Tenant fw life, 573, 581
investments, nature of, 581
Investment (f purchase-money — Inquiry as to title, &c., 568
Alterations and permanent improvements, in, 572
Mansion-house, to, 572
Buildings, in removing or replacing, 571, 580
with advances during progress of works, 572
Enfranchisement of copyholds, in, 568, 569
Incumbrance, in discharge of, 570
tuith special provision for costs of mortgagee, 570
Lands, in, 568, 579
Land tax, in redemption of, 569, 579
Mortgage, in, 574
provisions of Act as to, 578
tenant for life, when balance of purchase-money paid to, 579
title, affidavit as to, 580
LASTING IMPROVEMENTS,
Inquiry as to, 234
LAW OF PROPERTY AND TRUSTEES RELIEF AMENDMENT ACTS,
appeal from order under, none, 634
application, mode of, and by whom, 633
construction, questions of, not generally entertained, 634
costs, in discretion of judge, 635
evidence, affidavits not admissible in, 635
inquiries, cannot be directed, 634
Investments, directions as to, 633
by trustees, description of, 635
Maintenance out of income — costs, 633
service of petition, 635
lease;
Granting of, restraining. See Injunction, 327
Digitized by Microsoft®
780 INDEX.
LEGACIES,
Abatement of, 200
interest, on, rate of — when computed, 220
Payment of, order for : See Administration (Ft»ther Consideration), 194
Valuation of, 201
LEGAL PRACTITIONERS' ACT, 1875, THE (38 & 39 Vict. c. 79),
party chargeable defeating or delaying payment, 524
LEGATEES,
Actions hy, decrees in. Bee Administeation (Legatees), 181
LIEN,
Agency lien — Fund in Court, 406
when entitled,to, 407
Policy premiums paid by married woman's separate estate, 406
purchaser who abandons contract, not entitled to, 407
Vendor's lien — Unpaid purchase-money, 405
Reversion — Sale or mortgage, 405
possession, independent of, 407
railway company, against, 407
LIFE ASSURANCE COMPANIES,
novation, by policy-holders, provision as to, 686
policies and annuities, valuation of, under, 685
valuation, mode of, 685
notice of, by official liquidator, 686
winding-up, who may obtain order for, 683
and of subsiduary company, 684
LIFE ASSURANCE COMPANIES ACTS, 1870-71-72,
amalgamation, or transfer of company, 715
deposit, payment of, into Court, 714
investment of, 714
return of, 714
reduction of contracts, in lieu of winding-up, 715
LIGHT AND AIR,
Injunctions as to : See Injunctions, 269
LIMITATIONS (STATUTE OF),
abatement, how affected by, 87
charity leases, when bar to suit to set aside, 243
trustee, when cannot be pleaded by> 151
LIQUIDATION ACT, 1868,
affidavit verifying list of creditors to be filed, 709
assets, when divided in specie, 709
creditors, meetings of, 712
foreclosure by notice, 712
orders to be drawn in chambers, 711
petition for confirming scheme, 710
Digitized by Microsoft®
INDEX. 781 ,
LIQUIDATION ACT, 1858— continued.
rehearing, petition for, limit of time for, 711
wlio may apply for, 711
scheme, mode of appUeation by, 709
confirmation of, how effected, 710, 711
effect of, 712
how marked, when assets are being wound up under Companies Act, 709
notice of filing, 710
order confirming, 711
inrolment of, 711
LIQUIDATOE,
call, mode of enforcing, by, 97
costs, when personally liable for, 654
official, appointment of, 654
powers of, 656
removal of, 655
aecmity of, mode of giving, 655
Possession, sheriff to deliver up, to, 667
provisional, appointment of, 654
winding-up petition, not entitled to appear upon, 654
LUNATICS AND PERSONS' OF UNSOUND MIND,
actions, by and against. Judicature Rules as to, 12
jurisdiction of L. 0. and L. JJ.'s as to, not transferred to High Court, 593
MANDAMUS,
when granted by interlocutory order, 109
when enforced by attachment, 109
MANOR,
Beceiver of, 338
MARRIED WOMEN,
actions by and against, Judicature Rules as to, 134-139
answer of, default of, 135 — refusal of, 136
appeal of, by next friend, 137
ixi forma pcmperis, 137
compromise of suit, by, 137
contempt, liability of, for, 136
costs, liability of, for, 137
Defend, to, separately from her husband, 134
Judicature Rules as to, 9
Examination of, ly Commissioners, 144
Court, ly, recital of, irt order, 144
Settled Estates Ad, under 618
foreclosure, against, when may be made, 137
Decree of, against husband wnd wife : See Mortgages, 401
forma pauperis, right to sue in, 138
leases of, or by (under 11 Geo. 4 & 1 Will. 4, c. 65), 123
See Pbopbktt Law Amendment Act.
Digitized by Microsoft®
782 INDEX.
MAREIED WOMEN— co?i<iMed.
Next friend, new — in place of one deceased, 134
in place of one living, 134
mtkout prejudice to liability of original next friend, 134
insolvency of, effect of, 135
neglect of plaintiff to obtain order for new next friend, effect of; 135
security for costs by, 135
without next friend, when may sue or defend, 9, 135
written authority of, to be filed, 135
protection order, effect of, 148
Separate estate of, charged — Inquiries — Costs, 145 '
Interference with — Injimction, against, 266
Settlement by Court — Whole fimd, 139
Portion of fund, 140-141
equity to, when it attaches, 141
assignees of life interest, not against, 141
creditors before marriage, nor against, 141
foreign subjects, when husband and wife are, 141
wife, death of, effect of, upon, 142
when not entitled to settlement, 145
survivorship, right of, by, 138
trustees, when bare legal, 594
will, establishing, against, 138
MARRIED WOMEN'S PROPERTY ACT (33 & 34 Vict. c. 93),
provisions in, 147
MARRIED WOMEN'S PROPERTY AMENDMENT ACT (37 & 38 Vict. c. 50),
provisions in, 148
MARSHALLING,
Charities, pure personalty reserved for charities, 235
Creditors' actions, in. See Administkation (Marshalling), 205
general principle as to, 217
MERCHANT SHIPPING ACTS, 1854 to 1875.
costs of claims established, generally payable by shipowner, 328
damages, limit of liability of shipowner for, 328
Injunction, sale of ship prohibited, 326
Mortgages — Charge on Freight — Account, 409
Lien — Mortgage to be executed— Account — Bill of Sale, 408
Stoppage in, transitu — Account, 409
On payment into Court — Inquiries — Injunction, 326
Apportionments to be paid, 327
property or share in ship, when may be sold, 328
ship, freight of, may be assigned, 411
mortgage of, how effected, 409
registration of, 409
Sale of, restrained, 326
transfer of ship by bill of sale, 409
Digitized by Microsoft®
INDEX. 783
METROPOLITAN BOARD OF WORKS ACT, 1869 (32 & 33 Vict. c. 102),
provisions of, 713
MINES,
Comtiguous, breaking through — Inquiries — Damages, 262
Leases — right to sit^aport, 262
MINES AND MINERALS,
Injunctions as to : See Injukctions, 261
Insjpection of working's of, 263
Sale of, apart from surface (under Settled Estates Acts), 623
Sale of lands — Exception of minerals (imder Conjmnation of Sales Act), 694
MODUS : See Titheb, 165
MORTGAGE,
Costs, raised by, and if necessary, sale, 211, 531, 538
Debts, raised by, or by sale, 206
Portions, raising by, 207
Purchase-money, investment of, in, 574
MORTGAGES,
allowances, what permitted to mortgagees, 370
insiurance premivims, for, 372
renewal of leases, for, 372
redemption of land tax, for, 372
Chattels and fixtures, account of, 361
when sold without bill for foreclosure, 379
Consolidation of, 393, 395
- applies both t6 foreclosures and redemptions, 396
mortgagee, when entitled to, 396
costs, generally go with principal and interest, 374
disclaiming parties, of, 376
what proceedings chargeable in, 374
when deeds lost, 376 j
when disallowed, 375
created, inquiry how, and how paid off, 187
Crown, when mortgagor's interest partly vested in, 367
decree, as to form of, 366, 367
Derivative mortgages, common order, 399
Equitable Mobtqageb,
Agreement to mortgage — Conveyance, 380
creation of, how effected, 386
D^osit (f deeds — Conveyance, 380
Copyholds — 8urr&^der, 381
luith account of rents received, 381
Further adva/nces — Deposit available against settlement, 384
Receiver — Account — Conveyance, 386
Sale — Infant's estate, 383
future advances, when covered by original deposit, 386
when deposit not perfected, 387
Digitized by Microsoft®
784: INDEX.;
MORTGAGES— cow^WMCc?.
Equitable Mobtgages — continued.
Interest, in absence of stipulation — £4: per cent, 385
Legal and equitable — Foreclosure, and assignment of lease, 382
Payment of fund in Court on accoimt — Costs added to debt, 384
Beversion, of, 382
Shares in mine — Pa/rtnership, 385
evidence of debt, production oi SBCwnty prima facie, 367
fixtures, what belong to mortgagee, 379
foreclosure, when and by whom suit may be instituted, 367
out of the jurisdiction, may be made of lands, 369
possession, without taking, suit may be commenced, 367
right of, not afiected by power of sale in mortgage deed, 367
FOREOLOBUEE DbCKEBS,
Common decree — Mortgagor in possession — Account, 350
DeJ* acRnitted, 350
Mortgagee in possession, 351
Accounts of rents and profits — Repairs and lasting improve-
ments, 351
Changes in interest of mortgagor, 357, 358, 359
of mortgagee, 358, 359
Foreclosure of part, remainder having been conveyed to mortgagee, 358
Priority, questions, of, raised between co-defendants, 356
, Several estates foreclosed — Specific performance as to one, 359
Successive foreclosures, 352, 353, 354
Special Accounts and Inquiries, in Foreclosure Decrees,
Deterioration — Waste — Inquiries as to, 363
Incumbrances, inquiry as to, 362
Insurance premiums — Fines — Account of, 363
Occupation rent— Annual value by way of, 363
Parties interested, inquiry as to, 363
Bepodrs — Lasting improvements — Accovmi of, 364
Bests, annual, account with, 364
FOKECLOSTJEB OF PERSONALTY,
Chattels and fixtures, 361
Chattels brought wpon 'mortgaged estate after date of mortgage, 362
Fund in Court, of, 360
Stock of, 360
Stock to be replaced, 362
FOKECLOSUBB IN PARTICtlLAK OaSES,
Infanfs estate — Nisi, 400
Absolute, by consent, 400
Insufficiency of mortgagor's estate to redeem, 401
wfeen for payment of debts, not entitled to order nisi, 401
Married women's estate — Account — Payment by husband and wife, 401
land, wife's interest in, with husband's consent, may be mortgaged, 402
personalty, wife by deed with consent, may dispose of future in-
terest in, 402
term of years, wife's, may be sold or mortgaged by husband and
.wife, or by husband alone, 402
Digitized by Microsoft®
INDEX. 785
MORTGAGES— coniirauei.
PoKECLosuBE IN PARTicuLAE Oases — Continued.
Principal and surety, mortgage iy — Account, 397
with redemption as between principal cind surety, 398
Solicitor and client — Account — Bills of costs, 403
Agreement cancelled — Security to stand only for advances, 403
professional position, solicitor to shew no advantage taken of, 403
FoKECLOStlEB ABSOLUTE,
Common order, 403 '
payment, day of, may be postponed, or foreclosure opened, 404
but, in redemption suit, special circumstances must be stated,
404
rents subsequently received prevent final order, 405
security for costs, when given, on opening foreclosure, 405
interest, when and what allowed, 372
arrears of, when recoverable, 373
in arrear, when converted into principal, 372
rate of, when not reserved, 374
subsequent interest, how computed, 373
Judgment creditor, at suit of — Receiver — Sale, 389
equitable mortgagees, held to be, 390
elegit, must sue out writ of, 391
Foreclosure against, 389
Redemption and foreclosure, at suit of — Payment into Court, 416
Successive foreclosures, at suit of, 388
lost deeds, as to costs of, 376
marshalling securities, 397
Merchant Shipping Acts — bottomry — as to contracts of, 412
Lien — Mortgage to le executed — Account — Bill of sale, 408
Stoppage in transitu — Account — Payment, 409
Payment, enlarging time for, 404
possession, mortgagee not bound to take, before commencing suit, 367
Receiver of mortgaged estate, 336, 378
Hedemption Decrees,
Common decree — Mortgagee in possession, 412
annuity, of, 418
Benefit huilding societies — Duration of society calculated, 422
Duration of society not calculated — Bonuses, 423
Equitable mortgagee, charged with waste, 416
Mortgagor against traiisferee of mortgage and derivative mortgagee, 415
Reversion of — Unreasonable bargain, 419
Shares, suit hy mortgagee of — Calls — Sale, 418
Tender of money due — Payment into Court — Account, 414
Successive redemptions, 415
Welsh mortgage — Redemption suit, 425
Special Accounts and Inquibies in Redemption Decrees,
Annual Rests, 414
Insurance premiums, 414
Occupation renf, 413
Bents and profits, 413
Repairs, 413
Digitized by Microsoft® 3 e
786 INDEX.
MORTGAGES— co«*mKecif.
redemption suit, dismissal of, when operates as foreclosure, 422
offer to redeem, when necessary, 420
parties to, who are necessary, 420
redeem, who has the right to, 420
suits for possession of land, when mortgagor may sue alone, 422
time for redemption, limit of, 420
when mortgagee in possession, 422
Welsh mortgage, in, 422, 426
receiver, when power to appoint exercised, 378
when mortgagee entitled to a receiver, 378
rests, mode of taking accounts with, 377
personal estate, not applicable to, 377
Sale, instead of PoEBCLOsmiE,
Common f mm, 364
at request of mortgagor — Payment into Court — Foreclosure, 365
vdth special terms as to reserve lidding and lots, 365
conduct of, to whom given, 369
deposit, when required, 368
immediate sale may be directed, 368
but not on interlocutory application, 368
nor by varying decree for foreclosure, 368
stock, if account of, what is due is directed, may be redeemed, 380
reversionary interest in, mortgagee of, not bound to submit to decree
for sale, 380
Tacking, 391, 392
Vendors and Purchasers Act, 1874, effect of, on, 392
but since repealed by Land Transfer Act, 1875 . . 741
Trustee, mortgage to a, 398
joint tenants, one may redeem, 399
but not his own moiety only, 399
mortgagee, if trustee also, not allowed to foreclose, 399
sale, when not allowed to bid at, 399
wilful default, inquiry for, when directed, 371
actual fraud not necessary, 371
bad cultivation — non-repair— rent — underletting, 371
MORTMAIN
Act, provisions in, 236
exceptions from, 237
MOTION FOR JUDGMENT,
action, when set down on, 64
after trial of issues, 52
MOTIONS,
Judicature Rules as to, 73
applications under the Rules to be by motion, 73
two clear days' notice of, required, 73
evidence on, to be by affidavit, 62
parties who may be served with, 73
Digitized by Microsoft®
INDEX. 787
MUNICIPAL CORPORATIONS ACTS,
Declaration of rights — Conveyance — Transfer into Co«rt, 54X
provisions of, 542
NATIONAL DEBT ACT, 1870.
Claimant, trcmsfer and payment to, 716
second, remedy of, 718
Inquiry as to parties entitled, 716
petition under, 718
costs of, 718
service of, on whom required, 718
rescinding order for re-transfer, 718
Trustee, transfer to, for ieneficiary, 716
legal owner, not directed in absence of, 717
unclaimed dividends, provisions as to, 717
accumulations of, 717
NE EXEAT (WRIT OF),
administration, in, when obtainable, 221
Common order for, 333
mode of obtaining, afSdavit necessary, 333
money must be actually due, 333
Discharge of — Damages, 334
Security, on deft giving, 334
NEWSPAPER,
restraining publishing of: See Injunction, 281, 308
NEXT FRIEND,
insolvency of, effect of, 135
neglect of pit to obtain order, effect of, 135
New, in place of one deceased, 134
in place of one living, 134
without prejudice to liability of original next friend, 134
security for costs, by, 135
without next friend, when may sue or defend, 9, 135
written authority of, to be filed, 135
NOISY TRADES,
injunctions as to, 278
NOVATION,
policy-holders, by, provisions as to, 686
NOXIOUS VAPOURS,
Restraining, 270
NUISANCE,
disorderly crowd, when deemed to be, 279
injunction, right to, 268
previous knowledge of, when relief not haired by, 268, 269
public companies, by, 268
slight or temporary, when, 268
weekly tenants not restrained for, 260
3 E 2
Digitized by Microsoft®
788 INDEX.
OBJECTIONS,
Ingviiry as to delivery of, in suit by vendor, 428
OCCUPATION EENT,
Annual value set, by way of, 363
Inqmry as to, 187, 413
OPENING ACCOUNTS,
effect of, 154
when will be directed, 154
OPBEA,
Prcfessiorruil services at, restraining, 281
ORDER OF COURT,
agreement for arbitration, made, 545
ORDERS,
enforcing. Judicature Rules as to, 94
See also ENFORCiNa Orders and Judoments
OUTLAWRY,
cases as to, 77
OUTSTANDING ESTATE,
decree to contain inquiry as to, 221
Inquiry as to, 178
PARISH CHURCH,
Oestm que vie, production of, at, 526
PARLIAMENTARY DEPOSIT ACT,
investment, wben directed, 565
securities, in, prescribed by the Act only, 565
Transfer out — On certificate of Ghairman of House of Lards, or Speaker of
House of Commons, 564
Boa/rd of Trade, on certificate of, 564
deputy chairman, certificate of, sufBcient, 565
petitioners' nominees, to, when, 565
seal of company, when required, 566
need not be verified, 566
Standing Orders, provisions of, 566
PARTIES,
Judicature Rules as to who may be joined as parties, 8
deft, when added, 10
deft claiming contribution or indemnity, 10
executors and trustees to represent their trust estate, 9
married women — infants — may sue and be sued by next friend, 9
partners — may sue and be sued in name of firm, 9
persons not being, notice to be given to, 11
appearance by, 11
misjoinder of, action not defeated by, 9, 11
Digitized by Microsoft®
INDEX. 789
PARTIES INTERESTED,
Inquiry as to, 363
PARTITION,
Advowson, of — Alternate presentations, 474
Commission, by, 475
Advowson of— And after presentation, sale, 477
Infant entitled — Deposit of title deeds in Cou/rt, 477
Manor, and advowson — Trustee abroad, 475
Metes and bounds in — Title deeds, 476
costs in discretion of Court, 481
of infants— of married women, 113, 481
infant, decree against, 119
injunction to restrain waste, after decree for, 480
Inquiries, as to parties — Shares, 472
Partition, in accordance with pla/n, 473
Partition in Chambers, after inquiries, 472
when infant entitled, 473
after trial of disputed title — Bents, 474
Partition and sale, 478
rents and profits, when account of, granted, 480
Trustee appointed, 473
PARTITION ACT, 1868,
Act, clauses of, 485
application of Trustee Act, to, 487
bid, liberty to party interested to, wlien granted, 487
County .Court jurisdiction under £500 . . 488
decree, as to form of, 486
certificate, if inquiries directed, must precede sale, 487
notice of, service of, 487 .
sale not made at hearing unless all parties interested are parties, 486
title, if proved at hearing, sale may be directed without inquiries, 487
inquiries at hearing, Judicature Rules as to, 487
out of jurisdiction, when parties interested, 486
parties necessary to suit, under, 487
proceeds of sale. Settled Estates Acts extend to, 488 .
Sale, under sect. 3 .. 481
under sect. 4 ..482
under sect. 5.. 482
infants, at request of, may be made, 486
married women, also at request of, 486
but if under sect. 5 husband must join, 487
provisions of Act as to, 485
Sale of advowson — Title of parties proved — Costs to be a charge, 483
of lands — Title proved — Infants entitled — Costs to be a charge, 483
out of Cou/rt — Title proved— Trustee Act, 1850 .. 484
PARTNERSHIP,
Account, decree for, 167
Agreement — Capital of partners — Division of assets — Inqmries, 171
Bankruptcy — Inquiry as to profits made subsequent to, 166
Books and papers, restraining removal of, 283 .
Digitized by Microsoft®
790 INDEX.
VAU'S'SE'nSEIP— continued.
Dissolution df — Inquiry if heneflcial to infants, 166
Decree for — Accomit, 167
Premium returned, 173
when directed, 175
interest on capital not allowed, after, 176
premium when returned, after, 176
sudden, if iDJurious, restrained, 174
Existence of partnership, inquiry as to, 166
mortgage to secure partnership debts, when fraudulent, 176
Partners credited and debited with interest on sums advanced and with-
drawn, 173
Partner deceased — Accounts, 168
Special accounts, 169
death of, effect of, 174
Insanity of, inquiry as to, 166
Separate estate of, made liable for partnership debts, 170
surviving partners ba/nhrv/pt — Accounts — Suit by creditor, 172
Peceiver of, 336, 337, 338
rests, 173
Sale — Receiver — Special accounts, 167
Sale as going concern — Liberty to bid, 169
Inquiry whether beneficial, and as to mode of, 166
Ships, in, general accounts as to, 168
Freight and profits, account of, 168
Sales, inquiry as to, 168
Voyage, commission in respect of duties performed during, hy partners —
Inquiry as to, 168
PATENTS,
. Accounts of, undertaking to Jceep, injunction refused, 302
costs after certificate of judge that validity of patent came in question, 307
hut only applies to costs of second trial, 307
damages, inquiry as to, when granted, 306
delivery or destruction of articles made in violation, 306
infringement of, interlocutory injunction when granted, 305
injunctions, when granted, 304
Inspection of, machinery — Samples, 300, 301
cases as to, 306
when not directed, 306
issues as to, trial of, 307
Machines, affidavit as to — Production, 301
mode of obtaining, 302, 303
profits, right to account of — ^Extent of account, 306
Inquiry as to, 298
Seal, order to — Time for filing fined specification extended, 302
specifications, as to, 303
Use of, restraining, 298, 299, 301
validity of, presumption as to, 304
PAYMASTER-GENERAL,
Delivery out of Court of box, 192
Deposit in Court of box, containing plate, jewelry, and secv/rities, 192
Digitized by Microsoft®
INDEX. 791
PAYMASTBR-GENEEAL— contmwea.
Deposit in Cov/rt — continwd.
of Exchequer hills, 191
of securities passing hy deed, 191
passing hy delivery, 191
Transfer into Court of annuities, 191
Rules, Chancery Funds, 1874, as to, 193
PAYMENT INTO COURT,
Chancery suspense account, 252
damages, in satisfaction of, 7
plea of, in defence, 7
purchase-money, of, 463
PENSION,
Receiver of, 340
PERSONALTY,
Pu/re and impure, inquiry as to, 184
Foreclosure of, 360
PETITION,
evidence on, to be by affidavit, 62
PLEADINGS,
Judicature Rules as to, 13-22
all^ation of fact, when taken as admitted, 15
denial of, not to be evasive, 15
amendment, when and how allowed, 20
how made, 22
default of, after order obtained, 21
hearing, at the, under recent practice, 22
not whilst demurrer pending, 25
close of pleadings after issue joined, 19
default of pleading, 26
defence, when to be delivered, 18
if counter-claim set up, 18
discontinuance of action by notice, 19
terms of, 19
meaning of term " pleading," 13
pleading generally, 13
signature of counsel not necessary to, 13
when to be printed, 13
how to be delivered, 14
relief sought, to be specifically stated, 14
reply, and subsequent pleadings, when delivered, 19
when leave of Court required, 19
statement of claim, when delivered, 17
where writ specially indorsed, 17
withdrawal of cause after entry for trial, 19
POLICIES,
valuation of, as to, under Companies Acts, 685
interest, rate of, 685
premium, how calculated, 685
Digitized by Microsoft®
792 INDEX.
POSSESSION,
person in, when not interfered with by Court, 267
writ of, Judicature Bules as to, 107
POSTEA,
verdict indorsed on — Agreement — Jury summoned, 44
New trial, after order fm — Deft not appearing, 45
Patent— Judge witlwut jury, 44 '
Tales prayed — Jury discharged without giving verdict, 45
POVERTY,
Inquiry as to, of prisoner, 638
PRINCIPAL,
Account between, and steward, 156
Mortgage hy principal and surety — Foreclosure, 397
principal and agent, 157
PRISONER,
Discharge of, 105
certificate of, under Debtors Act, when entitled to, 107
Habeas, order for, 99
Turn over, order for, 99
PRISONERS RELIEF ACT,
Counsel and solicitpr, assignment of (After report of official solicitor), 637
assignment of (after report of governor of gaol), 638
official solicitor, examination of prisoners by, 639
Prisoner, brought to bat — Assignment of counsel, &c., without inquiry-
Prisoner turned over, 637 '
Inquiry as to poverty, 638
reports from prisons other than the Queen's Prison, 639
PROBATE,
when received in evidence in suits aflfecting land, 212
PROBATE (COURT OP),
appearance of persons not named in writ, in, 6
Probate actions to shew in what character pit claims, 2
will, to determine validity of, jurisdiction of, 212
PROCEEDINGS,
Compulsory orders to carry on : See Cakry on Pbocbedings, 91
but present practice doubtful, 88
Pestraining, under Companies Act, 667
PRODUCTION, '
Documents of, on oath, 29
affidavit, form of, 30
Judicature Rules as to, 30
right to production, cases as to, 32
PRO INTBRESSE SUO, ,
Order for, 108
may be obtained as well of personalty and realty, 108
Digitized by Microsoft®
INDEX. 793
PROPERTY LAW AMENDMENT ACT (11 Geo. 4 & 1 Wm. 4, c. 65),
Leases for lives, or years — Surrender, 123
of land held in fee or tail (sect. 17), 124
Same section — Order at cha/mhers, 124
Act, provisions of, 124
application, mode of, 125
where infant is a ward of Court, 125
lease to be settled — No fine or premium to be taken, 125, 126
PROPRIETY OP SUIT,
Inquiry as to, 117
irregular to inquire if beneficial after decree made, 118
PROSECUTION,
Dismissed of action, f err want of, 26, 35, 88, 89, 90, 91, 92
PROTECTION ORDERS,
married women's property, on, effect of, 148
PURCHASE-MONEY,
Lands Glauses Acts, under, investment of, 568
PURCHASER,
Agreement, specific performance — Title accepted, 435
D^auU hy — Suit ly vendor^-Lieri — Sale, 432
Contract rescinded — Damages, 433
Be-sale, 467 '■
Discharge of, on his own application, 467
on vendor's application, 467
Payment of purchase-m,oney into Court — Title accepted, 463
Separate purchasers, ly schedule, 463
possession, effect of entering into, 465
Private contract confirmed, 464
Be-sale, on default of purchaser, 467
Substitution cf, 470
QUESTIONS OP PACT AND LAW,
Judicature Rules as to, trial of, by judge, with or without jury, 61
RAILWAY COMPANY, p
Adjoining house, injury to, inquiry as to damages, 317
Injunctions against : See Injunctions, 314-320
Land taken by, inquiry as to value of — Mesne profits, 320
Receiver of, 339
vendor's lien against, 407
RAILWAY COMPANIES ACT, 1867,
debts, as to jjayment of, by receiver, 704
inrolment of scheme, 707
of order confirming scheme, 707
protection of rolling stock and plant, provisions as to, 703
Digitized by Microsoft®
794 INDEX.
RAILWAY COMPANIES ACT, 1S67— continued.
Receiver of undertaking — Beet. 5 . . 703
application for, mode of, 704
service of, on whom necessaiy, 704
scheme of arrangement — provisions as to, 704
confirmation of, time for, 706
appearance of parties opposing, 706
application for, mode of, and parties to, 706
petition, day for hearing of, 706
notice of presentation of, to be advertised — form of notice, 706
order on, — notice of order to be published, 707
filing of — ^with declaration and afBdavit annexed, 704
notice of filing, publishing of, in Gazette, 704
rehearing, petition of, limit of time for, 708
who may present, 708
restraining action against company, after, 704
when deemed to be assented to, by holders of mortgages, debenture
stock, &c., 705
guaranteed or preference shareholders, by, 705
ordinary shareholders, by, 705
railway, by leasing company of, 705
when assent not reqiiisite, 705
RECEIVER,
Account, to bring in, peremptory order, 348
mode of taking, 342
of proceeding upon, 343
Action, liberty to bring or defend, 347
Appointment of, hy reference to Chambers, 335
by Cov/rt, without reference, 335
at Chambers, after reference, 335
without previous order, 336
Agent abroad, with power to appoint, 340
effect of appointment of receiver, 344
property, of what, he may be appointed, 344
mortgaged, when of, 344
Bankrupt estate, of, to take legal proceedings, 347
Canal, of, 339
Colliery business, of — Debts put in suit, 337
Dffbth of — Payment of balance by executor, 348
Discharge of — Eecognizance vacated, 348
mode of, 349 .
DistraAn, for rents, 346
distress for rent by, when and how made, 348
Docks, of, 340
Heir-looms, of, 338
interest on balances, when chargeable with, 342
MoMor, of, 338
Mortgaged estates, of, 336
Prior incumbrances — Inquiiy — Interest, 336
when appointed, 378
Digitized by Microsoft®
INDEX. 795
'REGMYER— continued.
payment by, mode of enforcing, 97
Pension, of, 340
Railway, of, 339
Eectory, of, 340
Becognizcmce to he put in suit, 348
when appointed without sureties, 343
Repairs or worlcs, expenditwrefw, sanctioned, 347
after certificate, 347
salary of, 342
Seowrity, to give new, 341
in place of deceased surety, 341
Consolidated Orders as to, 342
sureties — ^must be resident within jurisdiction, 343
Sheriff, withdrawal of, after receiver's claim, 346
Solicitors^ partnership husiness, of, 338
Trade or business, of, 336
RECOGNIZANCE,
Receiver of, to he put in suit, 348
RECTIFICATION,
Settlement, of, 453
RECTORY,
Receiver of, 340
REDEMPTION DECREES,
Mortgagee in possession : See Mobtgagbs (Redemption), 412
REDUCTION OP CAPITAL:
See Companies Acts (Reduction of Capital), 686
REFEREE,
Judicature Rules as to trial before, 61, 62
REGISTER, RECTIFICATION OF :
See Companies Acts, 659
REGISTRIES :
See District Registeibs, 53
RENEWAL OP LEASES,
Mortgagees, allowance to, on, 372
RENTS AND PROFITS^
Account of, 413
when directed, 164
Inquiry as to, in charities, 244
partition suit, in, when granted, 480
REPAIRS,
Account of, 364, 413
Digitized by Microsoft®
796 INDEX,
REPLY,
Judicature Rules as to, 19
Time for — and all subsequent proceedings, 19
RESALE,
purchaser's default, 467
See Sales by the Codkt
RESTS,
Account with, 364, 414
Partnerships, in, 173
ROMAN CATHOLICS,
Charitable Trusts Acts, as to gifts to, 534 /
scheme may be directed, 534.
SALE,
Foreclosure, instead of : See Mortgages (Sale), 364
Partition Act, under, 481
SALES,
Inquiry as to, and disposal of proceeds, 184
SALES BY THE COURT,
acceptance of title, when not required before payment in, 464
bid, leave to, when given, 461
, seller, not entitled to, 461
conduct of sale, who entitled to, 460
conveyance, directions as to, 466
conveyancing counsel, subject to opinion of, 461
deposit as to payment in, of, 461
Inquiry as to title, 462
commencement of title, 463
costs of inquiry, 462
interest, when payable by purchaser, 465
investigation of title, purchaser's duties as to, 462
particulars of sale, 460
Payment into Court — Title accepted, 463
Separate purchasers — By schedule, 463
perishable nature, Judicature Rules as to sale of, 471
possession, effect of entering into, 465
meaning of term " possession " in contract, 465
rule as to time of, 464
Private contract, confirmed, 464
property, how sold — mode of sale, 460
property tax, when deducted by purchaser, 464
purchaser, when not entitled to appear, 466
Resale, purchaser's default, 467
Contract rescinded— Vendor's application, 467
Discharge of purchaser — Purchasers application, 467
when will be granted, 468
Sale — with inquiry as to incumbrances, 459
without inquiry as to incumbrances, 459
when may be directed, 459
Digitized by Microsoft®
INDEX. 797
SALES BY THE COURT— continued.
Suhstitute purchaser, order to, 470
TiUe deeds, delivery out of Court of, 466
SCANDALOUS,
interrogatories, when struck out, as, 28
pleadings, when struck out, as, 20
SCHEME,
charities of : See Charities, 243
Charitable Trusts Acts, under, 534
Railway Companies Act, 1867, under, 704
SECUBITY FOE COSTS,
foreclosure, on opening, 405
revivor, on obtaining order for, 87
SEPARATE ESTATE,
Interference with, injunction against, 266
Married woman, of, charged — Inquiries — Costs, liH
SEQUESTRATION,
Common order for, 98
Corporations, against, 100
Serjeant-at-arms, after order for, 100
SERJEANT-AT-ARMS,
Order for, 98
proceedings after, mode of, 99
SERVICE OUT OP THE JURISDICTION
Conctirrent writ, of, 4
when allowed, 4
SET-OFF,
accounts, in, 155
costs, and administratrix^ balance, 207
SETTLED ACCOUNTS,
to stand, 150
to be opened, 150
SETTLED ESTATES ACTS,
advertisements of petition, 619
consents, what necessary, 617
notice, in lieu of, 617
conveyance, order must state by whom to be executed, 624
Costs charged on the land, &c., 628
power of Court, as to, 632
evidence, what necessary, 620
enfranchisement of copyholdp,-when directed, 624
Digitized by Microsoft®
798 INDEX.
SETTLED ESTATES AD'Y:&—c<mtinued.
Guardian, of infant petitioner or respondent, 617
when to be applied for, 618
interim investment, on what securities, 625
same as permitted for cash under the control of the Court, 625
Lease, agreement for, carried into effect, 625
Building leases, 627
term for which granted, 628
repairing lease, term includes, 628
lunatic or person of unsound mind, to consent by committee, 618
Married women, examination of, by solicitor, 618
when to he taken, and whether an infant or not, 619
Mines, sale of, apart from surface, 623
Mining leases, 630
term of, 631
Notice of order, indorsement of, 621 , 632
Registration of order, 621
Sale, under sect. 11 .. 620
Payment into Court, 621
to trustees of settlement or will, 621
to new trustees named in order, 622
Sale of whole property, part only in settlement, 622
Special agreement for, carried into effect, 622
sale moneys, application of, 624
permanent repairs, when applied in, 624
setting down petition, when, 620
settlement and settled estates, definition of, 624
Streets, roads, gardens, laying out in, 628
Dedication for — Reference to Chambers, 629
Plan adopted, 629
Trustees, appointment of, for purpose of exercising powers of leasing, 628
and of receiving money set aside out of rents, &c., 631
SETTLEMENT,
Covenant in, rectified, 453
equity to, of wife, when attaches: See Makbied Women (Settlement), 141
Fund in Couijt — Whole fund, 139
Part of fund, 140
Mistake in,— funds being in Court, 455
rectification of, when relief given by, 456
Rectified — Fresh deed to he executed, 453
Without fresh deed, 453
Period of raising charges, as to, 454
Sale and exchange, power of, as to — Reconveyance, 455
Voluntary settlement — Deed cancelled, 455
Deed set aside — Improvidence, 456
SEWERS,
openin?;, restraining, 276, 277
SHARES,
Company, by, restraining declaration of forfeiture of, 323
Digitized by Microsoft®
INDEX. 799
SHERIFF,
Writ, order nisi, to return, 108
order absolute, 109
SHIPS.
Freight and 'profits, account of, 168
Partnership in, general accounts as to, 168
Sales, inquiry as to, 168
Bestravning : See Injunctions, 326
Transfer of, hy bill of sale: See Merchant Shipping Acts, 409
SHOOTING,
right of, no restraint against cutting timber, 258
SOLICITOR,
Attachment against, on taxation of his bill, 102
appearance, in default of, after undertaking, 6
when liable to, for non-payment of money, 102
Change of, order for, 494
when not made without order, 494
record and writ clerks, notice to be given to, 494
retirement or death of solicitor, how affected by, 494
Costs of suit charged on fund in Court — Sale and payment, 499, 500
Charged on sum for which cheque drawn, 501
Ctiarged on married woman's annuity, 501
Sale or mortgage, raised by — Infant's suit, 500
when made a charge, 502
Delivery of deeds hy solicitor to client on payment into Court, 495
of office copies to new solicitor, 496
of order by solicitor to registrar for pttrposes of entry, 496
of papers, &g., to new solicitor — Undertaking to return, 4:Q5
for purposes of appeal — Lien of former solicitor, 495
discovery, service of order for, on, 35
notice to client of order for, 35
neglect to give, effect of, 35
Foreclosure — Solicitor and client — Accou/nt — Sills of costs, 403
Deed to stand as security for sums advanced, 403
Injunction against employing particular solicitor, 313
lien of, on fund in Court, when entitled to, 497
Payment to, of sums v/nder £10.. 195
Prisoner, to, assignment of, 637
remuneration, agreements for, by (33 & 34 Vict. c. 28), 522
examined and allowed by Taxing Master, must be, 522
power of Court to reduce amount or direct taxation, 522.
SOLICITOR'S BILL,
Agents' bill, to tax, on application of solicitor — Payment into Court, 510
Charity Commissioners, at instance of, taxation of, 524
Delivery of, by solicitor to client — Taxation, 506
by solicitor to clients executors, &c. — Taxation, 508
amendment of bill after, not allowed, 524
interest, when 4;hargeable by and against, 523
Particular items, reference to tax, 510
Digitized by Microsoft®
800 INDEX.
SOLICITOR'S 'BILL— continued.
payment of, by party chargeable, defeating or delaying, 524
Bolicitor, enforcing, 525
remuneration, agreements for, by solicitor, 522
Taxation of — On application of person chargeable —
delivered within one month, 504
after one month and within twelve months, 505
after action hrought, 505
on application of solicitor himself, 505
of third party liable to pay — Costs to abide result, 515
of one of two parties chargeable, with leave to dispute
retainer, 509
Taacation of deceased solicitor's bill, delivered by his executor, 507
of bill paid by executors on application of person interested — Costs
reserved, 516
of bill retained and paid out of client's money in solicitm's hands, 518
of bill after payment — Costs of reference to abide result — Costs of appli-
cation to be paid by sdlicitor, 519
after payment — Costs reserved, 520
071 a/pplication of representative of deceased client, 520
SPECIAL CASE,
Judicature Rules as to, form of, 36
costs of, in discretion of Court, 38
future rights, no jurisdiction to declare, on, 37
printed, signed, and filed, 36
special guardian for infants and lunatics, 36
setting down and entering for argument, 37
amendment of, after, 37
SPECIFIC PERFORMANCE,
compensation — abatement — rules as to, 447, 448
County Court jurisdiction, in suits for, 452
damages, when awarded, 449
decree, generally as to frame of, 433
right to obtain, cases as to, 440-446
when constitutes a judgment debt, 449
Husband and wife — Agreement of — Deed of separation, 438
interest, on deposit, not payable by purchaser, 450
on purchase-money, when commences, 450
Lessee's suit — Agreement for lease, 437
Repairs, inquiry as to — Damages, 437
Lessor's suit — Agreement for lease, 437
Building contract — Damages, 437
lien, when granted, 450
occupation rent, when allowed, 447
outgoings, what included in, 447
purchase-money, payment into Court, when directed, 448
Purchaser's suit — Title accepted, 435
Abatement for deficiency, 435
Defective title — Lien — Inquiries, 436
Limited interest — Misrepresentation — Compensation, 436
Digitized by Microsoft®
INDEX. 801
SPECIFIC PERFORM A.t^CE—cmtmued.
rents and profits — wilful default — vendor when liable to, 44(3
time, when esseneo of the contract, 449
Vendor's suit — Contract disputed, 427
Delivery of abstract and objections, inquiry as to, 428
Default hy purchaser — lAen — Sale, 432
Contract rescinded — Damages, 433
when directed, 451
effect of default, 451.
Defective title — liepayment of deposit and interest — Lien, 435
Defective as to part — Compensation, A31
excess in value, when good defence, by purchaser, 448
inadequacy of consideration, when good defence in suit for, 448
Mistake — Conveyance rectified, AZl
Parol variation of contract — Specific performance, 432 '
Mailway company — Title accepted — Payment into Court, 433
Payment out of Court — Lien for purchase-money, 433, 444
Sale in default of payment, 434
Title rnily in dispute — Common reference, 427
Accepted — Commonform, 429
Special inquiries — Occupation rent, &g., 429
Accepted as to part, 428
commencement of title Cafter 31st Dec, 1874), 446
doubtful, purchaser not compelled to take, 440
inquiry as to, when in general terms, meaning of, 439
objections to, when to be made, 439
under value, purchase made honafide not opened or set aside, for, 448
STANNARIES COURT,
Companies Act, under, when proceedings taken in, 646
STATEMENT OP CLAIM,
Judicature Rules as to, 17
amendment of, 20
delivery of, time for, 17
non-delivery of, effect of, 26
Order to dismiss, for, 26
STATUTE OP LIMITATIONS : See Limitations (Statute of)
STEWARD,
Account hetiveen principal and, 156
STOP ORDERS,
Assignee, substituting name of, 329
Carrying over, continuing stop order after, 329
Cheque of Paymaster-General, restraining, 329
Common order for, 329
Digitized by Microsoft®
3 F
802 INDEX.
STOP OB.D¥^nS— continued.
priority of, 330
rights of parties not decided by, 330
SUBSTITUTED SERVICE,
Writ, of, 3
cases as to, 4
Judicature Eules, as to, 3
SUMMONS,
Chambers, at, applications by, 74
evidence on, to be by afiSdavit, 62
SURCHARGING ACCOUNTS,
Liberty to surcharge and falsify, 149, 153
SURETY,
Contribution hy — Suit by surety, 161 ,
Suit by executors of surety, 161
Joint liability — Cancellation of indenture not executed by one surety, 162
SUSPENSE ACCOUNT (CHANCERY),
Payment into, 252
TACKING,
Vendor and Purchaser Act, 1874, effect of, on, 892
but since repealed by Land Transfer Act, 1875 .. 741
See MoBTGAGES, 391
■ TENANT FOR LIFE AND REMAINDERMAN,
Accounts between — Fines, &c. — Value set on life — Interest, 158
Fines paid on renewal, inquiry as to — Saje or mortgage, 159
Benewal term — Inquiry as to computation of interest, 158
Benewals, fines, and fees — Inquiry as to, 158
mode of adjusting as to, 221
TESTAMENTARY GUARDIAN,
control of Court, subject to, 114
Petition against — Inquiries as to infant's property, &c., 116
removable by consent only, except upon bill filed, 115
TIMBER,
Cutting of, restrained, 254
Ornamental and unripe — Inquiries as to timber cut, 254, 256
shooting, right of, no restraint against cutting, 258
TITHES,
account of, when directed, 165
modus, 165
TITLE,
Abstract of, inquiry as to delivery of, 428
affidavit as to, when required, 580
Digitized by Microsoft®
INDEX. 803
TITLE— continued.
Defective, vendor's suit — Bill dismissed, 435
Inquiry as to, 462
TITLE DEEDS,
, Delivery out of Court of, 466
TRADE,
Receiver of, 336
TEADE-MAEKS,
Injunctions against using : See Injunctions, 309
TEADE-MAEKS EEGISTEATION ACT, 1875,
application for registry, who may make, 742
to Court, mode of, 743
Cutlers' Company and ShefBold corporate marks, as to the, 745 ,
disputed claim, reference to Court, 742
proprietors, title of, 743
register, rectification of, 743
register oflSce, establishment of, 744
trade-marks, definition of, 746
removal of, from register, 744
restrictions on registry of, 744
TEADE SECEBTS,
divulging, injunction will not be granted, 314
TEANSFEE,
Action, of — One Court to another of same Division, 39
one Division to another, 39
Judicature Eules as to transfer, 39
TEANSFEE INTO COUET,
Common order to, 191
See also Patmastee-Gbnebal
TEBSPASS,
injunction, right to, 267
TEIAL,
Judicature Eules as to, 59
assessors, commissioners, referee, 61
default of appearing at trial, 60
evidence at, 62
judgment, motion for, 64
set aside, leave to, 61
mode of trial — place of, 59
new trial, motion for, 63
notice of trial, 60
questions ofjact and. law, how tried, 61
Digitized by Microsoft®
804 INDEX.
TRUSTEES,
attachment, against, for non-payment of money under order, 102
Debtors Act, 1869, under : See Debtors Act, 1869 .. 102
costs, when by reason of neglect or misconduct, not entitled to, 222
judicial opinion, how obtained by, 633
Statute of Limitations, cannot be pleaded against cestui que trust by, 151
TRUSTEE ACTS, 1850 and 1852.
application under, mode of, 615
suit, otherwise if in, 606
who may make, 615
bankrupt, new trustee may be appointed in place of, 613
Bankruptcy Act, new trustees may be appointed of trust deed registered
under, 612
bare trustees, as to, 594
Constructive trust — Appointing person to execute, 607
definition of — what constitutes, 608
convey and assign, provisions as to appointing person to, (sects. 20, 21), 599
Costs — Usual order (_sect. 51), 614
Mortgage, raised hy, 614
disclaiming trustee, evidence of, 613
Dower — Legal estate vested to uses in bar of (^sect. 7), 594
existing trustee, orders may be made either with or without, 611
evidence, what required, 616
heir of testator, when necessary party, 597
Lands.
Copyhold or customary — Vesting order — Or conveyance (sect. 28), 604
lord of the manor, consent of, not necessary, 604
Decree for sale, vesting order, after (sect. 29, and Extn. .4c< 1), 605, 606
application for order, to be made at Chambers, 606
Estate tail hatred — Vesting order, 605
Mortgagees, death of, without possession or receipt of rents (sect. 19), 598
Infant mortgagees (sects. 7, 8), 594
Trustees, appointment of — Vesting order (ss. 32, 34, 35 ; Extn. Act, 9) 608
Agreement for settlement, of, 609
Copyholds, of, — And vesting order ivithout prejudice to fines, 609
Leaseholds, of, 610
Convey, neglecting or refusing to — Vesting order (sects. 7, 8), 598
Death of, on — Vesting order (sects. 13, 14, 15, 16), 596
Out of Jurisdiction — Vesting order (sects. 9, 10, 1], 12), 596
lunatics and persons of unsound mind, jurisdiction as to, 593
High Court of Justice, jurisdiction not transferred to, 593
lands, when seised of, 593
stock standing in name of, 593
married women, when bare trustees, 594
husband of executrix, when out of jurisdiction, 601
service of petition, on whom required, 616
Stock.
New trustees, vesting in (sect. 35), 610
Non-existent incorporate htidy, finds to account of, 610
Digitized by Microsoft®
INDEX. 805
TRUSTEE ACTS, 1850 and 1852— continued.
transfer — Appointing person to (sects. 20, 21), 599
Vesting right to transfer —
Death of sole trustee — No reprenentative (feat. 25), 602
Bepresentative refusing (Extn. Act, 5), 602
Lunatic trustee — One of several {Extn. Act, 4), 688
Out of jurisdiction — Sole trustee (seel. Ii2), 600
One of several, 600
Refusal or neglect — Sole trustee (sect. 23), 601
Joint trustee (sect. 24), C02
Befusal after order served — One of several (Extn, Act, 4), 602
trust, meaning of word in Acts,_ 596, 597, 608
trustee, number of, not diminished, but may be increased, 611
refusing, service on, wlien not necessary, 604
sole trustee, not generally appointed, 611
who may be appointed, 613
Unborn persons, interests of, vesting order (sect. 30), 606
Convey, ajnpointing person to, on lehalf of, 607
TRUSTEE RELIEF ACTS,
affidavit on payment in, by whom made, 589
Chancery funds, rules as to, 589
Chancery funds (amended) orders as to, 590
Income, payment of, to tenant for life — Costs, 587
Without prejudice to suit, 587
petition for, service of, 591 *
out of jurisdiction, 591
law of property and Trustee Relief Amendment At^ts, 633
Parties entitled, inquiry as to, 587, 588
petition, upon, what may be decided, under, 591
costs, when trustee entitled to, 591
TURN OVER,
Order for, 99
UNDERVALUE,
purchase made bond fide not to be opened or aside for, 448
USHER,
Oath to, on jury retiring, 50
VENDORS AND PURCHASERS ACT, 1874,
manied women, when bare truslees, 594
repeal of sect. 5, by Land Transfer Act, 729
of sect. 7, by Land Transfer Act, 741
title, commencement of, after 31st Dec. 1874 ..446
verdict;
Fostea, ori, forms cf indorsement of, 44
See PosTBA.
VIEW,
Order for, by jury, 51 ~
Digitized by Microsoft®
806 INDEX.
WASTE,
Injunctions as to, 254, 257
See Ikjunctions (Waste)
Inquiry as to, 363
WATER,
Diverting and polluting, injunctions against, 274
See Injunctions (Water).
WELSH MORTGAGE,
Decree in redemption suit, 425
redemption, no time is limited for, 425
right to redeem but not to foreclose, 425
WIDOW,
dower, when not entitled to, in land, 491
Election, inquiry as to, 189
WILL,
Admitted — Declaration in decree, 180
Established, 180
original, delivery out of, 213
proof of, when not required, 213
WILFUL DEFAULT,
mortgagee, against, when inquiry directed, 371
actual fraud, proof of, not necessary, 371
bad cultivation, non-repair, rent, underletting, &o., 371
WINDING-UP,
Company, of, orders for : See Companies Acts, 640
Life Assurance Companies Acts, under, 683
See Life Assukancb Companies
WITNESS,
Oath for, form, of, 50
having conscientious objection, 50
WRIT,
Return of, order nisi to enforce, 108
WKIT OF DBLIVEET,
Judicature Rules as to issue of, 109
WRIT OP EXECUTION,
Judicature Eules as to, 95
WRIT OP FIEBI FACIAS,
Judicature Rules as to, 96
WRIT OF POSSESSION,
Judicature Eules as to, 107
judgment for recovery of land, when enforced by, 107
when partly executed, alias writ, may issue, 108
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INDEX. 807
WRIT OP SUMMONS,
Judicature Rules as tx), 1
action, commencement of, by, 1
claim, indorsement of, 1
Concurrent, writ, service of, out of jurisdiction, 4
service of, when not requii-ed, 2
memorandum of, 3
mode of, 2
particular actions, in, 3
particular defts, on, 2
Sulstiticted service of, order for, 3
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M)in)Oif :
FEINTED BY V'lLLIAM CLOWES AND SOSS,
STAMFORD STKKET AKB CHARIKO CROSS.
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Digitized by Microsoft®