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Full text of "The statutes, rules of court, and general orders relating to the practice and jurisdiction of the Chancery division of the High Court of Justice and the Court of Appeal, with copious notes, being the sixth edition of Morgan's Chancery acts and orders, thoroughly revised and considerably enlarged"

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CORNELL UNIVERSHY LIBRARY 




1924 084 264 294 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924084264294 



THE 



STATUTES, RULES OF COURT, AND 

GENERAL ORDERS 



EELATINO TO THE 



PRACTICE AND JUEISDICTION 

OF THE 

Chancery Division of the High Court of Justice 

and the Court of Appeal. 
^V^ITJH COPIOUS NOTES. 

BEING 

THE SIXTH EDITION 

OP 

MORGAN'S CHANCERY ACTS AND ORDERS, 

THOROUeHLY REVISED AND CONSIDERABLY ENLARGED. 

BY 

THE EIGHT HONOURABLE 

GEORGE OSBOENE MOEGAN, ft.C, M.P., 

Mer Majesty's Judge Advocate General, 

ADD 

EDWAED ALBEET WUETZBUEG, 

Of Lincoln's Inn, Barrister-at-laiv. 



LONDON: 

STEVENS AND SONS, 119, CHANCERY LANE, 

1885. 



LONDON: 
C. r. SCWOBTH, PBINTBB, OBEAT NEW STSEEI, FBTTBB LANS — ^E.O. 



TO 



TKB EIGHT HONOUEABLE 



ROUNDELL, EARL OF SELBORNE, 

LORD BIGH CSANGELLOR OF GREAT BRITAIN, 

ETC., ETC., 

MDEE TUTIOSE AUSPICES THE GEEAT WORK OF CONSOLIDATING INTO AN HARMONIOUS 

WHOLE THE VAEIOUS AND DISCORDANT SYSTEMS OF ENGLISH JUDICATURE 

WAS SUCCESSFULLY INAUGURATED, 



IS BY PERMISSION 



Respectfully Inscribed. 



PREFACE TO THE SIXTH EDITION. 



In preparing the present Edition for the Press, the 
Editors, while omitting nothing which they considered 
to be of practical utility, haye eHniinated everything 
calculated unnecessarily to swell the bulk and cost of 
the Volume. The last Edition, which was brought out 
under circumstances of exceptional pressure, has been 
thoroughly revised, and the greater part of it has 
been entirely re- written; every case, within the scope 
of the wort, has been carefully noted up down to the 
date of publication ; and in a word, no effort has been 
spared to retain for the present Volume the popularity 
which its predecessors have now for more than a quarter 
of a century enjoyed. 

G. O. M. 
E. A. W. 

February, 1885. 



TABLE OF CONTENTS. 



SoLioiTOEs Act, 1843 . . . . . . . . 1 

SoLiciTOES Act, 1860 . . . . . . .15 

Attorneys and Solicitoe8 Act, 1870 . . . . . 19 

Lands Clauses Consolidation Act, 1845 . ' . . .24 

Parliamentary Deposits Act, 1846 . . , . . 49 

Trustee Eelief Act, 1847 . . . . . .50 

Trustee Belief Act, 1849 . . . . . . . 60 

Trustee Act, 1850 . . . . . . ». 61 

Trustee Extension Act, 1852 . . . . . . 90 

Charitable Trusts Act, 1853 . . . . . .94 

Infants' Settlement Act . . . . . . . 96 

Custody of Ihtants Act, 1873 . . . . . .97 

Lord St. Leonards' (Property and Trustees) Act, 1859 . . 99 

La-wofPropertyFurther Amendment Act, 3860 . . .104 

Vendor and Purchaser Act, 1874 . . . . . . 106 

conveyancina and law of property act, 1881 . . .109 

coitteyancing act, 1882 . . . . . . . 127 

EuLEs UNDER Conveyancing Acts, 1881, 1882 . . . .131 

Settled Land Act, 1882 . . . . . . . 139 

Settled Land Act Eules, 1882 . . . . . .157 

Settled Land Act, 1884 . . . . . . . 165 

Eailwat Companies Act, 1867 . . . . • .167 

Judgment Act, 1864 . . . . • • . . 177 

Partition Act, 1868 . . . • • • -179 

Partition Act, 1876 . . . . • • . . 184 

Debtors Act, 1869 . . . . • • .187 

Married Women's Property Act, 1882 . . . . . 192 

Petition of Eight Act, 1860 . . • • • .201 

Chancery Funds Act, 1872 . . . . ■ . . 203 

Chancery Funds Amended Orders, 1874 . . . .211 

JxnJicATUBE (Funds, &c.) Act, 1883 . . . . . . 213 



viii TABLE OF CO^fTENTS. 

PAGEl 

Supreme Court Fitwds Rules, 1884 . . . • • 215 

I. Operation of Rules and Interpretation of Terms . ■ • 21o 

1. Oommencement of Rules and short title . • .215 

2. Repeal of existing Rules . . . • • • 215 

3. Interpretation of terms . . ■ • .215 

II. Preparation of Orders in the Chancery Division and in Lunacy to he 

acted on by the Paymaster, and particulars relating thereto .217 

4. Application of Rules 5 to 27 inclusive . . .217 
6. Order for funds to be brought into Court to have a Lodg- 
ment Schefule . . . • • • 217 

6. Order for funds to be paid out, &c. to have a Payment 

Schedule 217 

7. When a separate account is opened . . . • 218 

8. When both a Lodgment and Payment Schedule to be 

annexed ....... 218 

9. Separate Schedule for each ledger credit . . ■ 218 

10. Instructions to Paymaster to be solely contained in 

Schedules . . . . . • .218 

11. Schedule to state when sums are to be ascertained by cer- 

tificate, &c . . . . 219 

] 2. Certificate for payment of taxed costs . . . 219 

13. Interest how ascertained . . . . . 219 

14. When the day to which interest is payable cannot be ascer- 

tained 219 

15. When interest certified by a Chief Clerk, &c. . . . 219 

16. When interest to be ascertained by affidavit . . 220 

17. Deduction of income tax from interest . . . . 220 

18. Documents on which any dealings by the Paymaster are 

made contingent to be described .... 220 

19. Periodical payments . . . . . . 220 

20. Legacy and succession duty ..... 220 

21. Payment, transfer, or delivery to trustees, &c. . . . 221 

22. Draft Schedule to be prepared by party having conduct of 

proceedings ...... 221 

23. Orders how drawn up and entered . . . . 221 

24. Authentication and record of Orders, and copy of Schedules 

for Paymaster ...... 221 

25. Paymaster to act on copy of Schedules . . . . 222 

26. Additional copies of printed Orders .... 222 

27. Amendment of accidental errors in printed Orders . . 222 

IV. Lodgment of Funds in Court ..... 222 

29. AU funds lodged in Court to be placed to the account of 

the Paymaster . . . . . . . 222 

30. Manner of lodgment of funds in Chancery Division, and 

particulars to be stated in request. Lodgment in Court 

in actions for debt or damages .... 223 

31. Conditional lodgment of money at the Bank in urgent cases 223 
33. Lodgments under Orders XXII. and XXXI. of the Rules 

of the Supreme Court, 1883, to be distinguished in Pay 
Office books '..... 224 

35. Requests and directions may be sent by post . . , 224 



f ABLE OF CONTENTS. k 

Stjpeeme Cotiet Funds Rules, ISS-i— continued. 
IV, Lodgment of Funds in Court — continued. ' page 

36. Persons may bring funds into Court in the Ohancery 

Division, thougli time limited by Order has expired , 224 

37. Upon receipt or transfer of funds, direction to be returned 

to Paymaster . . . . . . . 224 

38. Certificate of lodgment to be filed .... 225 

39. When money is lodged Tinder Act 8 Vict. c. 18, s. 69, dis- 

ability to be stated . . . . . . 225 

40. Money lodged under the Copyhold Acts _to be specially 

described ....... 225 

41. Lodgments imder the Trustee Eelief Act (1 & 11 Vict. c. 96) 225 

42. Credit to which proceeds of securities and dividends are to 

be placed . . . .» . . .226 

VI. Payment, Delivery, and Transfer of Funds out of Court, and other 

dealings with Funds . . . . . . 226 

44. Payment out of Court of money lodged in actions for debts 

and dai^ages ...... 226 

45. In other cases funds to be dealt with only in pursuance of 

an Order . . . . . . . 227 

46. A copy of every Payment Schedule or Order dealing with 

funds in Court to be left at Pay Office . . . 227 

47. Paymaster to prepare directions giving effect to Orders upon 

receipt of the necessary authority and information . . 228 

48. Payments may be made by post .... 228 

49. Paymaster's directions to be sufficient authority to the Bank 

or other Company . . . . . . 228 

50. Discharge to Paymaster ..... 228 

52. Payments to oflloial persons to be made by transfer . . 229 

53. Payments for securities purchased ; and transfers of securi- 

ties sold . . . . . . .229 

54. Accounts to which investments, sales, &o., are to be credited 229 

55. Application of dividends accruing on securities transferred 229 

56. When such dividends have been invested . . . 230 

57. When dividends otherwise applicable have been invested . 230 

58. Dividends on residue . . . . . . 230 

59. Application of money or dividends placed on deposit after 

date of Order dealmg therewith .... 230 

60. Application of interest on money placed on deposit after 

date of Order directing its investment . . . 230 

61. Funds ordered to be paid or transferred to women who 

afterwards marry ...... 230 

62. Payments, &c. to representatives of deceased persons . . 231 

63. Payments, &c. to partners ..... 231 

64. Payments, &c. to surviving representatives . . . 231 

65. Within what time probate or letters of administration must 

have been granted ..... 232 

66. Payment of legacy or succession duty . . . . 232 

67. Carrying over fees on proceedings and taxation . . 232 

68. Deduction of income tax on payments of or out of dividends 232 

VII. Investments ........ 233 

69. Investment of accruing dividends under an Order . . 233 

70. Purchase of Exchequer bills or bonds . . . 233 



X TABLE OF CONTENTS. 

Supreme Cotjet Funds Eules, 1884 — continued. 
VII. Investments — continued. PAGE 

71. Bank to renew Exchequer biUs, and to receive principal and 

interest of securities when paid off . . • • 233 

72. Limit of amount to be invested . . • • 234 

73. Investment of money lodged under 36 Geo. III. c. 52. 

(Infant legatees.) . . .. • . . 234 

74. Investment of money lodged under the Trustee Belief Act . 234 

75. Investing stayed or discontinued on request . . ■ 235 

VIII. Money on Deposit, and Interest thereon .... 235 

76. Money to be placed on deposit ,* . • • • 235 

77. Money not to be placed on deposit in certain cases . . 235 

78. When money shall be withdrawn from deposit . . . 236 

79. Time for placing money on deposit .... 236 

80. As to placing on deposit cash arising from conversion of 

Government securities . . • • • 236 

81. No interest computed on a fraction of 12. . • • 236 

82. For what periods interest is to be computed . . . 236 

83. "When interest is to be credited .... 237 

84. Mode of calculating interest in certain cases on parts of 

money withdrawn ....•• 237 

85. Placing of interest on deposit . . • • • 237 

IX. Exchange or Conversion of Qovernment' Securities, and Transactions 

with the National Debt Commissioners . . . 237 

86. Exchanges of securities in lieu of actual purchases and sales 237 

X. Calculation of Residues, Evidence of Life, &c. . . . 238 

94. Calculations of residues to be made in Pay Office . . 238 

95. Evidence of Ufe, &c. . . . . . • 238 

96. Affidavits in other cases . . . . . . 238 

XI. Copies of Orders and other Documents for Audit Office . . 238 

97. Office copy of schedules, &c. to be sent to Audit Office . . 238 

98. Office copies of certificates and other documents to be sent . 238 

XII. Miscellaneous . . . . . . . . 239 

99. Paymaster to give certificates of funds in Court . . 239 

100. Paymaster, may issue transcripts of accounts and furnish 

, other information . . . . . . 239 

101. List of dormant funds, &c. to be made trienniaUy and 

published . . . . . . .239 

102. Transfer of small balances to a special account . . 240 

103. Titles of accounts not to exceed 36 words . . . 240 

104. Outstanding cheques of late Accountant-General . . 240 

105. Index of documents filed ..... 240- 

106. Names and addresses of suitors . . . . . 241 

107. Paymaster's directions to be issued and signed as Treasury 

may prescribe . . . . . .241 

108. Identification of persons to be paid . . . . 241 

109. When stocks or shares of companies or other securities are 

converted . . . . . .241 

110. When allotments of new stock are made by companies . 241 

111. Eules not to apply to District Eegistries . . . 241 



Table of contents. xl 

SxTPEEMB OOTJET Ftwds Eules, 188i— continued. 

Appendix No. 1. has-e 

Form of Lodgment Schedule referred to in Rule 3, and specimen 

Lodgment Schedules . . . . " . . 242 

Appendix No. 2. 

Form of Payment Schedule referred to in Rule 6, and specimen 

Payment Schedules ..... 243 

Appendix No. 3. 

Form of combined Lodgment and Payment Schedule referred 

to in Bule 8 . , . . . . . 244 

Appendix No. 5. 

Form of Request for Lodgment of Money in Chancery Division 

referred to in Rule 30 . . . . .245 

Appendix No. 6. 

Form of Request for Lodgment or Transfer of Securities in 

Chancery Division referred to in Rule 30 . . . 245 

Appendix No. 7. 

Form of Requdfet for Lodgment in Chancery Division, in an 

action for debt or damages, referred to in Rule 30 . 246 

Appendix No. 11 (A). 

Form of Request for Payment of Money lodged "in satis- 
faction," referred to in Rule 44 (A) . . . . 247 
Appendix No. 11 (J5). 

Form of Request for Payment of Money lodged " against claim" 

referred to in Rule 44 (B) . . . . . 247 

Appendix No. 12. 

Form of Request for a remittance by Post of Money payable 

under an Order of the Court referred to in Rule 48 . . 248 



JuDicATUBE Act, 1873 . 
JiroioATUBE Act, 1875 
Appellate Jtjeisdiction Act, 1876 
Jtjdioatube Act, 1877 
Jtjdicattibe (Oeficees) Act, 1879 
Jtjdicatuke Act, 1881 
judicattjbe act, 1884 . 



248 
277 
286 
290 
291 
296 
301 



RULES OF THE SUPREME COURT, 1883 and 1884 . 
Oedeb I. — ^Form and Commencement of Action. Rules 1 to 2 
n. — Writ of Summons. Rules 1 to 8 . 
TTT. — Indorsement of Claim. Rules 1 to 8 . 
IV. — Indorsement of Address. Rules 1 to 4 
V. — Issue of Writs of Summons. 1. Place of Issue, 
Rules 1 to 4 . 

2. Assignment of causes. Rules 5 to 9 

3. Generally. Rules 10 to 14 . ■ 
VI.— Concurrent Writs. Rules 1 to 2 

Vn. — 1. Disclosure by Solicitors, &o. Rules 1 to 2 . 
2. Change of Solicitors. Rule 3 . 



. . 305 
305—306 
306—307 
307—309 
309—311 

311 
311—313 
313—314 

314 
314—315 

315 



TABLE 01' CON'TENTS. 



EULES OF THE SUPREME COURT, 1883 AMD 1884- 

Ord. VIII.— Renewal of Writ. Rules 1 to 3 . 

IX.--Service of Writ. 1. Mode. Rules 1 to 2 

2. Particular Defendants. Rules 3 to 5 

3. Partners, &o. Rules 6 to 8. 

4. Particular Actions. Rule 9 

5. Generally. Rule 15 
X. — Substituted Service. Rule 1 

XI. — Service out of Jurisdiction. Rules 1 to 7 
Xn. — Appearance. Rules 1 to 30 
XIII. — Default of Appearance. Rules 1 to 14 
XIV. — Summary Judgment. Rules 1 to 6 . 
XV. — Application for Account. Rules 1 to 2 . 
XVI.— Parties. 1. Generally. Rules 1 to 13 

2. Partners. Rules 14 to 15 . 

3. Persons under Disability. Rules 16 to 21 

4. Paupers. Rules 22 to 31 . 

5. Administrations, &c. Rules 32 to 47 . 

6. Third Parties. Rules 48 to 55 
XVII.— Cbange of Parties by Death. Rules 1 to 10 

XVIII. — Joinder of Causes of Action. Rules 1 to 9 
XIX.— Pleading Generally. Rules 1 to 27 
XX. — Statement of Claim. Rules 1 to 8 
XXI. — Defence and Counterclaim. Rules 1 to 21 . 
XXII. — Payment into Court. Rules 1 to 18 
XXni.— Reply. Rules 1 to 6 

XXrV. — Matters arising pending the Action. Rules 1 to 3 
XXV. — Proceedings in lieu of Demurrer. Rules 1 to 5 
XXVI. — Discontinuance. Rules 1 to 4 . 
XXVII.— Default of Pleading. Rules 1 to 15 
XXVIII.— Amendment. Rules 1 to 13 

XXX. — Summons for Directions. Rules 1 to 3 
XXXI.— Discovery. Rules 1 to 28 
XXXII. — ^Admissions. Rules 1 to 9 . 
XXXIII. — Issues, Inquiries, and Accounts. Rules 1 to 9 
XXXIV.— 1. Special Case. Rules 1 to 8 

2. Issues of Pact. Rules 9 to 12 
XXXV.— District Registries. Rules 1 to 24 . 
XXXVI.— Trial. 1. Place. Rules 1 to la. 

2. Mode of Trial. Rules 3 to 10 , 

3. Notice and Entry. Rules 11 to 21 . 

4. Entry in District Registries. Rules 22a to 

5. London and Middlesex. Rule 29 . 

6. Papers. Rule 30 . . . 

7. Proceedings. Rules 31 to 42 

8. Assessors, &c. Rules 43 to 55 . 

9. Writ of Inquiry. Rules 56 to 68 . 
XXXVn.— Evidence. 1. Generally. Rules 1 to 4 

2. Examination of Witnesses. Rules 5 to 25 

3. Subpoena. Rules 26 to 34 

4. Perpetuating Testimony. Rules 35 to 38 

5. Examiners of the Court. Rules 39 to 50 



continued. 

PAGE 
315—316 
316 
317—318 
318—319 
319 
319 
320 
320—322 
322—326 
326—330 
330—332 
332 
333—337 
337—338 
338—340 
340—341 
342—347 
347—350 
350—353 
353—354 
354—360 
361—362 
362—365 
365—368 
369—370 
370—371 
371—372 
373—374 
374—377 
377—381 
381 
381—394 
394—396 
397—400 
400—403 
405—406 
406—410 
410—411 
411—413 
413—415 
415-416 
417 
417 
417—419 
419—421 
421—422 
422—423 
423—428 
428—429 
429—430 
430—432. 



28. 



TABLE OF CONTENTS. 



RULES OF THE SUPREME OOURT, 1883 and 188i— continued. 

Okd. page 

XXXVIII.— Affidavits. 1. Affidavits. Rules 1 to 19 . . 433--438 

2. Chambers. Rules 20 to 2-t . . . 438—439 

3. Trial. Rules 25 to 30 . . . . 439—441 
XXXIX.— Motion for New Trial. Rules 1 to S . . 441—442 

XL.— Motion for Judgment. Rules 1 to 10 . . . 442—444 

XLL— Entry of Judgment. Rules 1 to 10. . . 444—446 

XLTI.— Execution. Rules 1 to 31 . . . . 446—452 

2. Discovery in aid. Rules 32 to 34 . . 452 — 453 

XLin.— "Writs of Fi. Fa., &c. Rules 1 to 7 . . . 453—454 

XLIV. — Attachments. Rules 1 to 2 . . . . 455 

XLV.— Attachment of Debts. Rules 1 to 9 . . . 455—458 

XLYI.— Charging Stock. Rules 1 to 13 . . . 458—462 

XLVIL— Writ of Possession. Rules 1 to 3 . . . 462—463 

XLVm.— Writ of Delivery. Rules 1 to 2 . . . 463 

XLIX.— Transfers, &c. Rules 1 to 8 . . . . 463—465 

L. — Interlocutory Orders. 1. Interlocutory Orders. 

Rules 1 to 15a 466—471 

2. Receivers. Rules 16 to 22 . . . . 471—473 

3. Liquidators. Rules 23 to 24 ... 474 
LI. — Sales by Court in Chancery Division. Rules 1 to 6 474—476 

2. Conveyancing Counsel. Rules 7 to 13 . . 476 — 477 

Ln.— Motions. Rules 1 to 22 .... 477—482 

Lm.— Mandamus. Rules 1 to 4 . . . . 482—483 

LTV.— Chambers. 1. General. Rules 1 to 10 . . 483—485 

LV. — Chambers in Chancery Division. 1. General. 

Rules 1 to 2 . . . . . 485 

2. Administrations and Trusts. Rules 3 to 14 . 488 — 491 

3. Powers and Duties of Chief Clerks. Rules 15 

to 18 . . . . . . 492—493 

4. Assistance of Experts. Rule 19 . . . 493 

5. Summonses ia Chambers. Rules 20 to 24 . 494 — 495 

6. Proceedings relating to Infants. Rules 25 to 27 495—496 

7. Documents to be left at Chambers. Rules 28 

to 31 496 

8. Summonses to proceed. Rules 32 to 37 . 496 — 497 

9. Summons Book. Rules 38 to 39 . . . 498 

10. Attendances. Rules 40 to 43 . . . 498—499 

11. Advertisements for Creditors and Claimants. 

Rules 44 to 61 499—503 

12. Interest. Rules 62 to 64 . ' . . 503—504 

13. Certificates of the Chief Clerk. Rules 65 to 71 504—506 

14. Further consideration. Rule 72 . . . 506 

15. Remstering and drawing up of Orders in 

. Chambers. Rules 73 to 75 . . . 507 

LVn.— Interpleader. Rules 1 to 15 . . . . 507—509 

LVTH.— Appeals. Rules 1 to 19 . . . • • 509—518 

LX.— Officers. Rules 1 to 4 .... 519 

LXI.— Central Office. Rules 1 to 33 . . . . 519—524 

LXn.— Chancery Registrars. Rules 1 to 18 . . 531—534 

LXm.— Vacations. Rules 1 to 16 . . . . 534—537 

LXIV.— Time. Rules 1 to 14 . . . . 337—539 



xvi TABLE OP CONTENTS. 

„ TtT PAGE 

Section rv. 
Actions included in Ord. III. r. 6, classes A., B., 0., D., E. and F. 592-593 

Section V. 
Actions for damages for breach of contract or duty arising out of con- ^^^ 
tract ..••■•■■■ 

Section VI. 
Actions claiming injunctions, damages, or declarations of right founded 
on wrongs ....•■• 593—595 

Section Vii. 
Actions for recovery of land, &c. . . ■ • • • 596 



Appendix D. 

Forms of Defence to he used pursuant to Ord XIX. r. 5. 

Section I. 

General form 596—597 

Section II. 

To actions specially assigned to the Chancery Division by sect. 34 of the 
Principal Act. Appendix 0., Sect. n. . . . 597 — 598 

Section IV. 

To actions included in Ord. III. r. 6, Classes A., B., C, D., E. 
andF. . . . . . . . . 699—600 

Section V. 

To actions for damages for breach of contract or duty. Appendix C, 
Sect. V. . . . . . . . . . 600 

Section VI. 

To actions claiming injunctions, damages, or declarations of right, 
founded upon -wrongs. Appendix C, Sect. VI. . . 600—601 

Section VII. 
To actions for recovery of land. Appendix C, Sect. Vll. . . . 601 

Section VHI. 
Counter-claims ........ 601 



Appendix E. 

Forma of Reply, &c, to he used pursuant to Ord. XIX, r. 5. 

Section I. 
General form ...... 



602 



Section II. 
Example of a statement of claim, defence, and reply . . gno ono 

Section in. 
Defence, including an objection in point of law , , 



TABLE 01' CONTENTS. 



APPENDICES TO EULES OF SUPREME COTTRT:— continued. 

Appendix F. 
Forms of Judgment. PAGE 

1. Default of appearance and defence in case of liquidated demand . 604 

2. Interlocutory judgment in default of appearance or defence where 

demand unliquidated , . . . . . . 604 

3. Judgment in default of appearance in action for recovery of land . 604 

4. Judgment in default of appearance and defence after assessment of 

damages . . . . . . . . . 604 

0. Judgment after appearance and order under Ord. XIV., r. 1 . 605 

6. Judgment at trial -without a jury . . . . . . 605 

7. Judgment after trial with a jury ..... 605 

8. Judgment after trial before referee . . . . . 605 

9. Judgment after trial of questions of account by referee . . 606 

10. Judgment upon motion for judgment . . . . . 606 

11. Judgment after trial by Court without jury .... 606 

12. Judgment in pursuance of order . . . . . . 606 

13. Judgment on certificate of registrar of County Court . . 607 

14. Judgment for defendant's costs on discontinuance . . . 607 

15. Judgment for plaintiff's costs after confession of defence . . 607 

16. Judgment for costs after acceptance of money paid into Court . . 607 

17. Judgment where no judgment entered at trial by jury . . 608 

18. Judgment on motion after trial of issue . . . • . 608 



Appendix Q. 



1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 
10. 
11. 
12. 
13. 
14. 
15. 
16. 
17. 
18. 
19. 
20. 
21. 
22. 
23. 
24. 



Part I. 
Forms of Prwcip 
Fieri facias .... 
Elegit ..... 
Venditioni exponas 
Fieri facias de bonis ecclesiasticis 
Sequestrai-i facias de bonis ecclesiasticis 
Writ of sequestration . 
"Writ of possession . 
"Writ of delivery 
Writ of attachment 
Distringas against ex-sheriff . 
Inquiry . . . • 

Certiorari .... 

Prohibition . . . • 

Mandamus .... 
Habeas corpus ad testificandum . 
Commission to examine witnesses 
Commission of partition 
Amended summons 
Eenewed summons . 
Subpoena .... 

Entry of action for trial . 
Entry of appeal 
Entry for argument generally 
M. 



608 
609 
609 
609 
609 
609 
610 
610 
610 
610 
610 
611 
611 
611 
611 
612 
612 
612 
612 
612 
613 
613 
613 



XT! TABLE OF CONTENTS. 

Section IV. fAGE 

Actions included in Ord. in. r. 6, classes A., B., 0., D., E. and F. 592—593 

Section V. 

Actions for damages for breach, of contract or duty arising out of con- 
tract ......... 593 

Section VI. 

Actions claiming iujunctions, damages, or declarations of right founded 
on wrongs . . . . . ■ . . 593 — 595 

Section VII. 
Actions for recovery of land, &o. . . . . . . 596 



Appendix D. 

Forma of Defence to le used pursuant to Ord XIX, r. 5. 

Section I. 
General form ....... 596 — 697 

Section II. 

To actions specially assigned to the Chancery Division by sect. 34 of the 
Principal Act. Appendix C, Sect. II. , . . 597 — 598 

Section IV. 
To actions included in Ord. m. r. 6, Classes A., B., C, D., E. 
andF. . . . . . . . 699—600 

Section V. 
To actions for damages for breach of contract or duty. Appendix C, 
Sect. V. . . . . . . . . ! 600 

Section VI. 
To actions claiming injunctions, damages, or declarations of right, 
foTinded upon wrongs. Appendix C, Sect. VI. . . 600—601 

Section VII. 
To actions for recovery of land. Appendix C, Sect. VII. . . . 601 

Section VIII. 
Counter-claims •••.... gOl 



Appendix E. 

Forma of Reply, &c. to le used pursuant to Ord, XIX, r. 5. 

Section I. 
General form ..... „„„ 

Section II. 
Example of a statement of claim, defence, and reply . . 602—603 

Section in. 
Defence, including an objection in point of law , , o^o 



TABLE 01' CONTENTS. 



APPENDICES TO EULES OF SUPREME OOUni— continued. 

Appendix P. 
Forms of Judgment. PAGE 

1. Default of appearance and defence in case of liquidated demand . 604 

2. Interlocutory jud^ent in default of appearance or defence where 

demand unliquidated . . . . . . . 604 

Judgment in default of appearance in action for recovery of land . 604 
Judgment in default of appearance and defence after assessm.ent of 

damages . . . . . . , . . 604 

Judgment after appearance and order under Ord. XIV., r. 1 . 605 

Judgment at trial witliout a jury . . . . . . 605 

Judgment after trial witli a jury ..... 605 

Judgment after trial before referee . . . . . 605 

9. Judgment after trial of questions of account by referee . . 606 

10. Judgment upon motion for judgment . . . . . 606 

Judgment after trial by Court witbout jury .... 606 

Judgment in pursuance of order . . . . . . 606 

Judgment on certificate of registrar of Ootmty Court . . 607 

Judgment for defendant's costs on discontinuance . . . 607 

Judgment for plaintifi's costs after confession of defence . . 607 

16. Judgment for costs after acceptance of money paid into Court . . 607 

17. Judgment wbere no judgment entered at trial by jury . . 608 

18. Judgment on motion after trial of issue . . . . . 608 



3. 

4. 

o. 
6. 
7. 
8. 



11 
12 
13, 

14 
15, 



Appendix G. 



Paet I. 
Forms of Prasci/pe. 

1. Fieri facias .... 

2. Elegit ..... 

3. Venditioni exponas 

4. Fieri facias de bonis ecclesiasticis 

5. Sequestrari. facias de bonis ecclesiasticis 

6. Writ of sequestration . 

7. Writ of possession . 

8. Writ of delivery 

10. Writ of attachment 

11. Distringas against ex-sheriff . 

12. Inquiry .... 

13. Certiorari .... 

14. Prohibition .... 

15. Mandamus .... 

16. Habeas corpus ad testificandum . 

17. Commission to examine -witnesses 

18. Commission of partition 

19. Amended summons 

20. Eenewed summons . 

21. Subpoena .... 

22. Entry of action for trial . 

23. Entry of appeal 

24. Entry for argument generally 

M. 



608 
609 
609 
609 
609 
609 
610 
610 
610 
610 
610 
611 
611 
611 
611 
612 
612 
612 
612 
612 
613 
613 
613 



TABLE OP CONTENTS. 



APPENDICES TO EULES OF SUPEEMB COVB.T— continued.' 



Appendix Gr.— continued. 


page 


25. Entry of special case ..... 


. 613 


26. Memorandum of service of notice of judgment . 


. . 613 


27. Search ....... 


. 614 


28. Memorandum on notice of judgment 


. . 614 


Appendix H. 




Forma of Writs. 




1. Pieri facias ...... 


. 614 


2. Fieri facias on order for costs 


. . 615 


3. Elegit ....... 


. 615 


4. Venditioni exponas .... 


. . 616 


5. Fieri facias de bonis ecclesiasticis 


. 616 


6. Fieri facias to the archbishop de bonis ecclesiasticis 


during the 


vacancy of a bishop's see . . . 


. . 617 


7. Sequestrari facias de bonis ecclesiasticis 


. 617 


8. Possession ...... 


. . 617 


10. Delivery ...... 


. 618 


11. Delivery ...... 


. . 618 


12. Attachment ...... 


. 618 


13. Sequestration ..... 


. . 619 


14. Distringas against ex-sheriff .... 


. 619 


Appendix J. 




Forms of Subpoena, &c. 




1. Subpoena ad testificandum (general form) 


. 620 


2. Habeas corpus ad testificandum .... 


. . 620 


3. Subpoena duces tecum (general form) 


. 620 


4. Subpoena ad testificandum at assizes 


. . 620 


5. Subpoena duces tecum at assizes 


. 621 


6. Subpoena ad testificandum, at sittings of High Court 


. . 621 


7. Subpoena duces tecum at sittings of High Court 


. 621 


8. Writ of inquiry for assessment of damages 


. . 621 


9. Certiorari to County Court .... 


. 622 


10. Certiorari (general) . . . . . 


. . 622 


11. Prohibition ...... 


. 622 


12. Mandamus ...... 


. . 622 


13. Commission to examine witnesses 


623—624 


Appendix K. 




1. Summons (general form) . . . . . 


. . 625 


2. Order (general form) ..... 


. 625 


3. Summons for directions pursuant to Ord. XXX. 


. . 625 


4. Order for directions pursuant to Ord. XXX. 


. 625 


5. Order for time ...... 


. . 626 


6. Order under Ord. XIV., No. 1 


. 626 


7. Order imder Ord. XI v., No. 2 . . . . 


. . 626 


8. Order under Ord. XIV., No. 3 


. 626 


9. Order under Ord. XTV„ No. 4 . 


. . 627 


10. Order to amend ...... 


. 627 


11. Order for particulars (partnership) 


. . 627 



TABLE OF CONTENTS. 



APPENDICES TO RULES OP SUPREME COVKE— continued. 

Appendix K — continued. 

12. Order for particulars (general) ..... 

14. Order to discharge or vary on application by tHrd parfy 

15. Order to dismiss for want of prosecution .... 

16. Order for delivery of interrogatories . . . . . 

17. Order for affidavit as to documents . . . . . 

18. Order to produce documents for inspection' 

20. Order for service out of jurisdiction . . . . 

21. Order for substituted service ... . . 

22. Order for renewal of writ ...... 

23. Order for issue of notice claiming contribution . . . . 

24. Order of reference ....... 

25. Order for examination of witnesses before arbitrator 

26. Order for examination of witnesses and production of documents . 

27. Order charging stock — nisi . . . 

28. Order charging stock — absolute . . . . . . 

29. Charging order. Solicitor's costs ..... 

30. Order to remove judgment from County Court . . . . 

31. Order for arrest (capias) under Debtors Act .... 

32. Order of reference under sect. 56 of the Supreme Court of Judica- 

ture Act, 1873 . . . . . . . . 

33. Order of reference under sect. 57 of the Supreme Court of Judica- 

ture Act, 1873 ....... 

34. Order of reference to master . . . . . . 

35. Order for examination of witnesses before trial 

36. Short order for issue of commission to examine witnesses 

37. Long order for issue of commission to examine witnesses 633- 
37a. Order for issue of letter of request . 
S7b. Request to examine witnesses .... 

38. Order for examination of judgment debtor . 

39. Garnishee order (attaching debt) .... 

40. Garnishee order (absolute) .... 

41. Order on client's application to tax solicitor's bill of costs 

42. Order on solicitor's application to tax bUl of costs 

43. Order to tax after action brought 

44. Order to try action in County Court . 

45. Order to give security or try action in County Court 

46. Order for examination touching means 

47. Order for payment of judgment debt by instalments 

48. Order for committal of judgment debtor 

49. Order for committal of judgment debtor on non-payment of in- 

stalment ...... 

50. Literpleader Order No. 1 . 

51. Interpleader Order No. 2 . . . • 

52. Interpleader Order No. 3 . 

53. Interpleader Order No. 4 . . • ■ 

54. Interpleader Order No. 5 . 

55. Interpleader Order No. 6 . . • • 
66. Interpleader Order No. 7 . 
57. Order dismissing summons (generally) 
58 Summons for entry of satisfaction on a registered bill of sale 

b2 ■ 



PAGE 

627 
628 
628 
628 
628 
628 
629 
629 
629 
629 
630 
630 
630 
631 
631 
631 
631 
632 

632 

632 
633 
633 
633 
-635 
. 635 
. 635 
. 635 
. 636 
. 636 
. 636 
. 637 
. 637 
. 638 
. 638 
. 638 
. 639 
. 639 

639 
640 
640 
640 
641 
641 
641 
642 
642 
642 



XX TABLE OF CONTENTS. 

APPENDICES TO EULBS OF SUPBEME COITRT— continued. 

Appendix L. 

Chancery Division. PAGE 

1. Summons by chief clerk • . . . • ■ • ^^^ 

2. Porm of advertisement for claimants not being creditors . . 643 

3. Form of advertisement for creditors . . . . • 643 

4. Notice to creditor to produce documents . . • • • 644 

5. Affidavit of executor or administrator as to claims of creditors . 644 
e. Exhibit referred to in Affidavit No. 5 . . . . . 644 

7. Notice to creditor of allowance of claim . . . ■ 645 

8. Notice to creditor to prove his claim . . . ■ ■ 646 

9. Notice that cheques may be received . . . . • 646 

10. Certificate of chief clerk . . . . . . . 646 

11. Affidavit verifying accounts and answering usual inquiries as to real 

and personal estate . .... . . 647 — 648 

12. Account of personal estate, being Account A. referred to in Form 

No. 11 . . . : 649 

13. Account of rents and profits, being the Account B. referred to in 

No. 11 650 

14. Receiver's account ..... 651 — 652 

15. Ordinary conditions of sale ...... 653 

16. Affidavit of result of sale . . . . . . . 654 

17. List of debts allowed ....... 655 

18. List of legacies remaining unpaid . . . . . 655 

19. List of annuities and arrears due ..... 656 

20. List of apportionments among creditors or legatees . . . 656 

21. Receiver's recognizance ...... 656 

22. Affidavit verifying^ receiver's report . . . . . 657 

23. Affidavit verifying abstract ...... 658 

24. Affidavit verifying engrossment of deeds . . . . . 658 

25. Originating summons ....... 658 

26. Request to set down cause for further consideration . . . 659 

27. Notice that cause has been set down for further consideration . 659 

28. Form of ordering accounts and inquiries . . . . . 659 



Appendix M. 



Payment in and out of Court. 
Rules 1 to 18 . . . . . . . 660—661 



Appendix N. 
Costs ........ 662-668 



Appendix 0. 
Repeals . . . . . . . . .668 



Obdee as to Fees and PEEOENTAaES to be taken by Stamps . 669—677 
Oedee as to Stjpeeme OoiniT Fees, 1884 . . . 678—685 

OeDEE as TO SUPEBME CoTTET FeES (OCTOBEtl), 1884 . . 686 



GENERAL INDEX 687—723 



TABLE OF CASES. 



A. 

PAOE 

A. I'. B 324 

A. ScB., £e 189 

Abadom ». Abadom 428 

Abbot, Jie 65 

Abbott, Se (18 Beav. 393) 13 

(4L. T. 576) 4,10 

Aberaman Iron "Works v. Wickens 

336, 618 

Aberystwith EaUway^ Se 50 

Abrey v. Newman 346 

Abud V. Eiohes 455 

Accidental Co. v. Meroati 542 

Ackers r. Ackers 540 

Adair v. Toting 617, 518 

Adam, JJe 196 

Adams, Jie 80, 88 

Adamson, Se 6 

■- r. Gill 494 

Adcock V. Peters 308 

Adderly v. Smith 642 

Addies' Chaiity (Feofiees o:^, i:x 

parte 45 

AdMns V. Bliss 445, 450 

Agar-Ellis, Se 98 

Agnew V. tJsher 320 

Agricvdtnrist Cattle Insurance Co., 

Se 485, 493 

Albert (Prince) v. Strange 341 

Albezette, Se 650 

Albion Steel Co., Se 280 

Alcock, £x parte 9 

Se 12 

». Gill 387, 505 

Alderson v. Elgey 114, 130 

Aldred, Se 29 

Aldridge v. Westbrook 548 

Alexander v. Nurse 435 

Allaway v. Oakley 166 

Allen, Se (W. N. (1867) 11) .... 31 

(Kay, App. 51) 57, 58 

(40 L. T. 456 ; 27 W. 

R. 529) 63, 462 

Davies r. Chat wood 7 

V. Aldridge 8 

V. Allen 180 

V. Jarris 8, 11, 12 

V. Eennett , 354 

». M'Pherson 341 

V. Norria 343 

». Taylor 436 

AUhusen v. Labouchere 385 

AlliiTn V. Dickinson 401, 610 

Alsager (Incumbent of), Hx parte 46 

Alsop t: Oxford (Lord) 558 

Alston, Se 37 



PAOI! 

Ambroise v. Evelyn 413 

Amos ». Chadwick 417, 465 

Andenshaw School, Se 43 

Anderson v. Bank of British Co- 
lumbia. .260, 382, 383, 388 

V. Stather(9 Jur. 1085).. 436 

■ V. (10 Jur. 383).. 327 

Auderton v. Yates 440 

Andrew v. Aitken 362, 356 

V. Eaebum 412 

Andrews, Mx parte 13 

— - — —Se 6, 8 

V. Bohannon 380 

V. Salt 98, 372 

V. Walton 188 

Angell V. Haddon 503 

Angelo, Se 64, 77 

Anglo-Egyptian Navigation Co., 

Se : 548 

Anglo-Italian Bank ». Davies . . 177, 
178, 331, 452, 468 

Angove, Se 12 

Anon. (2 H. &M. 124) S72 

(8"W. E. 333) 103 

W. N. (1876) 219) 481 

(W. N. (1876 23) 615 

• (W. N. (1876) 12) 276 

CW. N. (1876) 39 388 

(9 Hare, App. 27) 326 

(18 Jur. 770) 326 

(1 Jur. N. S. 974) 52 

(3 Jur. N. S. 839) 231 

(3 Ves. 516) 469 

V. Christopher 436, 437 

V. JoUand 469 

Anstey v. North Woolwich Co. . . 386 
Appleton «. Chapel Town Paper 

Co 333, 336 

Apthorpe, Se 66 

Archer v. Hudson 518 

Arden, JSi- parte 516 

(Lord), Se 39, 43 

Armitage v. Askham 45 

V. Coates 402 

». FitzwUliam 317 

Armour v. Walker 423 

Armston, Se 54, 66 

Armstrong, lEx parte 74 

V. Armstrong 400 

Arnold ». Dixon 182 

Arrowsmith, £x parte 4 

■ Se 66, 68 

Artistic Colour Co., Se 257 

Ashby V. Taylor 386 

Ashford v. L. C. & D. Bly. 

Co 47 

Ashley v. Ashley 499 



TABLE OP CASES. 



PAOB 

Ashley v. Taylor 337 

Ashmall v. Wood 346, 347 

Aslitoii V. Shorrook 478 

Ashworth©. Outram 266, 510, 649 

Asiatic Banking Co. v. Anderson... 317 

Askew V. Peddle 380 

V. Woodhead 34, 43, 44 

Aslatt V. Southampton (Corpora- 
tion of ) 468 

AspinaU v. Bro-wn 506 

Asser v. Goetze 421 

Associated Home Co. v. Whioh- 

cord 348 

Association of Land Pinamoiers, 

Se 280 

Aste V. Stnmore 393 

Aston's Case 426 

Aston, JJ« 80, 81 

V. Hurwitz 309 

V. Meredith 182 

Atherton v. British Nation Assui- 

ance Society 518 

Atkins, Se 352 

Atkinson, He 6, 7 

and Pilgrim, Be 563 

V. Mackreth 334 

A-ttomey-General v. AJford 55, 56 

«. Arkcoll .... 411 

B. Bermdndsey 

(Vestry of) 334 

V. Birmingham 

(Corporation 

of 337, 378 

V. Carrington 

(Lord). .551, 558 
V. Castleford 

LocalBoard 387 

'V. Chambers . . 494 

v.ColneyHatch 

Asylum . . 494 

V. Cooper 51, 79 

V. Drapers' Co. 

(9Eq. 69).. 557, 
558 
V. East Retford 



306 

542 

188 



of), 385 

• V. Emerson 384, 387 
■V. aaskiU..S82, 385 

■ V. Gee 469 

- V. Hackney Lo 

oal Board . 

■ ». Knight .... 

- V. Leathersel 

lers' Co. . 

- V. Lewis 438 

- V. Marsh 378 

- 1!. MerthyxTydfil 

LocalBoard 
of Health.. 494 

- V. Murdoch . . 88 

- V. Murray.. 305, 339 

- V. PaghamHar- 

bour Co. . . 422 

- V. Rochester 

(Mayor of) 43, 542 

- V. Shrewsbury 

Bridge Co. 305 

- V. Skinners' Co. 642 



PASE 

Attorney-General v. Swansea Im- 
provements 

Co 517 

V. Tomline .... 265 

. V. Vigor 469 

V. Ward 79 

11. Whitwood 

Local Boaxd 391 

V. Wiltshire 305, 339 

«. Wyvilie 548 

Attorneys Act, 1870, He 20, 22 

Attwood V. Small 334 

Atty V. Etough 402 

Atwood V. CMohester 329, 377 

V. MUler 365 

Aubrey, Se 33 

Audley^HaU Co., -Be 17 

Austen v. Bird 337 

Austin V. Amhurst 29 

V. Austin 98 

Australian Co., Se 52 

Avory v. Andrews , 468 

Ayles V. Cox 76, 83, 88 



Baohe, Se 79 

Back, Ex parte 31 

«j. Hay 411 

Bacon v. Bacon 383 

». Turner 306 

Badcock, Se 78, 82 

Baddeley v. Harding 541 

Bagot, Ee (10 W. R. 607) .... 28, 44 

(14 W. R. 471) 40 

V. Easton 334, 363 

Bagshawe, Se 7 

Baile v. Baile 16, 18 

Bailey, Se (34 Beav. 392) 4, 14 

(3 W. B. 31) 56 

(.W. N. (1869) 43) .... 177 

V. Birchall 18 

V. Gundry 541 

BaiUie, Se 51, 60, 514, 516 

■». Jackson 435 

Bainbrigge v. Blair 472 

Baines v. Wormsley 553 

Baker, Se (32 Beav. 626) 10 

(IIW. R. 1127) 427 

v. Baker. 188 

V. Holmes ,! 327 

V. Cakes 265 

V. Wisbeach (Corporation 

of) 306 

Ball V. Kemp- Welch 183 

Ballard v. Catling i 341 

V. Tomlinsou 607 

Baltic Co. H). Simpson 494 

Bamford v. Watts 478 

Band v. Randle 346 

Banda and Kirwee Booty, JSe, 

Kinlooh v. Reg 201 

Banister, Se 476 

Banks ». Banks 469 

V. Cartwright 398 

Banner v. Berridge 258 



TABLE OP OASES. 



PA6B 

Bauque IVanco - Egyptisrme v. 

Lutsoher 423 

Barber, He (14 M. & W. 720) , . . . 10 

(1 Sm. &G. 118) .... 59 

(18 Oh. D. 624) 34 

(2N. R. 571) 55 

V. Blaiberg 355 

r. Mackr^ 397 

BardweU v. Sheffield Waterworks 

Co 404 

Bareham, Se 44 

Barfield and Rush, He 189, 465 

Barham v, liongman 430 

Barker, iS« (1 Oh. D. 43) 80 

(17Ch. D. 241) ,...182 

(W. N. (1884) 237) . . 52 

V. Heniming 553 

V. Peile 56 

i;. Hele 317 

Bamaby v. Tassell 402 

Barnard, Ex parte 57, 58 

■ Re 7, 8 

V. Weiland 396 

Bamed's Banking Co. 'i 386 

Barnes, iSe (Seton, 542) 80 

(5 1,. T. 587) ...... 433 

V. Addy 334 

Barrett, Ex parte 9, 32 

Me 491 

V. Buck 397 

V. Hammond 189 

Barrington, Me 103 

Barrow, Me 10, 13 

Barrs-Haden, Me 152 

Barrs e. Fewkes ■. 517 

Barry Rail. Oo., Re 50 

Barter v. Dubenx 351 

Bartholomew, Re 56 

Bartholomew's Hospital (Gro- 

Temors of), -B^iJarie. . 39 

V. Freeman . . 467 

Bartlett, Re 475 

V. Bartlett 86 

V. Wood 540 

BarUey v. Bartley 391 

Bartaa, Ex parte 13 

V. Barton 185 

Bartmm, Re 7, 9 

BarweU v. Brooks 14 

Basnett v. Moxon 78 

Batemau ». Cook 435 

Bateman's Estate, Me 32 

Bates V. BnreheU 350 

V. Christ's CoUege, Cam- 

bridge (Master of) 383 

V. Eley 399 

Bath River Co. v. Willis 35 

Batley v. Kynook 548, 555 

Battel (Dean of). Ex parte 34 

Battell, Me 56, 59 

Batten v. Wedgwood Coal Co ... . 553 
Battersby, Me (10 Ch. D. 228) . . 69 

(16 Jiir. 900) 81 

Batthyany v. Walford 371 

Batty, Re 30 

Baugham, Ex parte 59 

Baxter, Re 74 

Bayley, Re 13, 14 

V. Cass 388, 440 



FAOIi 

Bayley v. Miles , 404 

Baylies v. Baylies 469 

Bayly v. Bayly 341 

V. Went 115 

Baynton v. OoUins 193 

Beale v. Ruston 342 

BeaU V. Smith 339 

Beardsall v. Cheetham 9 

Beattie v. Ebury (Lord) 548 

Beaty v. Ourson 55 

Beauolerk, Re 54, 59 

Beaufort (Duke of) v. Lord Ash- 

burnham 548, 549 

V. Crawshay 427 

Beaufoy, Me 34 

Beavau v. Carpenter 430 

Beck, Me 150 

Beoke, Me 7, 10 

Beckett v. Attwood 510 

V. Buckley 177 

V. Sutton 90, 182 

BeoHngham v. Owen 331 

Beokitt V. Bilbrough 271 

Bedborough v. Army Co 268 

Beddall v. Maitland . , 366, 370 

Beddgelert Ry., Re 168 

Beddoes, Ex parte 40 

Beddow v. Beddow 468 

Bedson, Me 8 

Beetlestone, Me 550 

BefBord, Me 59 

Begg V. Cooper 330 

Belaney v. Ffrenoh 17, 388 

Belcher v. Whitemore 397 

Belfast Water Commissioners, Me 29 

Bell V. Cade 372, 404, 405 

V. Dadelszen 349 

V. Kilmorey (Earl of) 305 

©.Turner 435,474 

V. Vincent 316 

Bellamy, 2Je 123 

V. Brickenden 399 

BeUohamber v. Giani 479 

Bellew 1!. BeUew 499 

Belton, Ex parte 9 

Benand, Me 56 

Benbow v. Low 359, 385, 392 

Bendyshe, Me 55, 59, 427 

Bennett, Expa/rte 52 

JS« (8 Beav. 467) 13 

(18Jur.33) 476 

V. Baxter 400 

». Hill 7 

V. Lytton 101 

V. Moore 396 

Bentley v. Craven , 470 

Berdanji. Birmingham Small Arms 

Co. 516 

V. Greenwood 423 

Berkeley «. Standard Discount 

Co 385, 386 

Berkeley's WUl (Earl of), iSe . . . . 33 

Berkley, Re 81 

Benie v. Howitt 16, 18 

Berry, Me 67 

V. Exchange Trading Co. . 478 

v. Gibbons 476 

Besant, Re 98, 99 

V. Wood 98, 99, 257, 355 



TABLE OP CASES. 



FAQB 

Besemeres v. Besemeres 428 

Bessant v. Noble 346 

Bethell v. Abraham 491 

V. CasBon 388, 389, 390 

Bethlem Hospital, Ee 40 

Betts V. Cleaver 388, 549 

V. Clifford 478 

V. De Vitre 566 

V. Doughty 378 

V. Menzies 383 

V. Thompson 336 

Betty v. L. C. and D. Ry 47 

Bevan, Me ... ^ 7 

and Whitting, Ee 9 

Bewioke v. Grrajiam 388 

Bianca, The 350 

Bicester (Churchwardens of), Hx 

pa/rte 31 

Bicknell v. Bicknell 337 

Bidder v. Bridges 423, 434 

Biddle, Ee 88 

Biddulph, Ee 54 

V. Lord Camoys 326 

■ V. DayreU 326 

Bierton, Ee 79 

Biggs, Ee 53 

• V. Peacock 180, 181 

Bignold, Ee 6, 10, 12, 79, 80, 83 

Bigsby V. Dickinson. . . .353, 511, 515, 

549 

Billing V. Coppock 5, 8 

Bingham v. Hallam 6 

Bingley v. Marshall 428 

Binns v. Hey . , 7, 14 

Birch, Be 56, 59 

V. Birch 454 

v. Williams 418,541 

Birchall v. Pugin 18, 457 

Bird, Ee 68 

«. Bird 341 

- — ». Heath 17, 380 

Birkett, Be 62, 66 

Birkenhead Docks (Trustees of) v. 

Laird 372 

Birminghaqi and Lichfield By., 

Ee 169 

Estates Co. ». Smith, 356, 

363 

(Mayor of) v. AUeu 421 

School, Be 369 

Waste Co. i). Lane. 406 

■ Wolverhampton and 

Dudley Ey. 48 

"Bj^ap, Mx parte 612 

— • V. Bishop 369 

Bishop's Waltham Ely. Co., Ee . 178 

Bissicks ». Bath CoUiery Co 449 

Blackburn Union v. Brooks .... 422 

Blackford v. Davis 398, 399 

Blackie v. Osmaston 357 

Blaokmore, Be n, 12 

V. Howett' 327 

Blagrave v. Kouth 8, 14 

Blain, Ex parte 338, 448 

Blair, Bx parte 7 

V. Massey 391 

Blake v. Albion Assurance Society '360 

V. Blake 666 

Blakeney v. Dufaur 541 



FAOI! 

Blakesly, Be 8 

Blaksley, Be 461 

Blanchard, Be 79, 80, 83, 84 

Bland V. Lamb 341 

Blandy ». De Burgh 4 

Blaxland v. Blaxland 476 

'Blease, Ex parte 512 

Blenkinsopp v. Blenkiusopp .... 322 

BHgh, JJe 339 

V. Tredgett 338 

felinston v. Warburton 402 

Bliss V. Putman 346 

Blomefield, Be 29 

Bloomar, Be 68, 78 

Blount, Be 308 

Bloxam v. Whipham 506 

Bloye,iJe 55, 57 

Blunt, ii!« 58,59,461 

V. Clitherow 469 

V. Heslop 4, 13 

Blyth, iJe 40, 550 

and Toung, Ee . . 108, 510, 612, 

514, 516 

V. Green 327 

Boden, Ee 71 

Boddington ». Woodley 341 

Boddy V. WaU 379 

Boehm v. Wood 469 

Bogg V. Midland Ely 37, 372 

Bolckow V. Fisher 382, 385 

Bolivia (Eepublic of) v. National 

Bolivian Navigation Co. ..401,444 

Bolton, Ky., Ex parte 49 

Ee 69 

i>. Bolton 449 

V. Corporation 6f Liverpool 383 

».LondonSohoolBoardl06,468 

V. Stannard 335 

Bond V. Barnes 464 

». Freke 113 

Bonelli, Ee 60, 321 

Bonfield v. Grant 326 

Bonnardet v. Taylor , 391 

Bonnewell D. Jenkins 418 

Bonser v. Bradshaw 16 

Booth V. Booth 549 

V. Briscoe 333 

V. Smith 99 

V. Trail 456 

Bordier v. BuireU 411 

Bomelnan v. Wilson 351 

Borough V. James 349 

Borthwiok v. Eansford, 332, 491 

Boswell V. Coaks 475 

Bothomley v. Sqxdre 537 

Bouch ff. Sevenoaks Ely 456 

Boughton, Be, Boughtouu. Bough- 
ton 17 

Boulton, Be 102, 277 

Bourke, Be 73, 83 

Bourne v. Buokton 518 

V. Coulter 379 

Bouverie, Ex parte 41 

BovUl V. Cowan 388, 389 

Bowden v. Eussell 188 

Bowen, Ee 271, 309, 332, 406 

V. Pearson 389 

V. Price 382 

Bower, Be g 



TABLE QI" CASES. 



PAOB 

Bo-wer v. Cooper 379, 656 

Bowes Se 42, 227 

V. Bute (Marquis of) .... 183 

V. Femie 387 

Bo-wmer, Me 80 

Bowra v. Wright 78 

Bowyer v. MaisliaU 347 

Box, Se 103 

Boyce, Me (12 W. E. 359 ; 4 De a. 

J. & S. 205) . . . . 65, 66, 80 

. (15W. E. 827) 369 

Boycott, Me ^ 80 

Boyd, Me 463 

11. Allen 180,181 

V. Petrie 391 

Boyle, Me 13 

Boynton v. Boyuton 351 

Boyse, Me, Crofton v. Crofton .... 423 

V. Colclougli 440 

Bozon V. Bolland 17 

Brace v. Taylor 271 

Bracey, Me 6, 10 

BrackeDbmy, Me 80, 81, 88 

Bradberry v. Brooke , .' 341 

Bradford, Me 266 

». Toung . . . .252, 264, 517 

Bradley v. Muntou 88 

Bradshaw, ^x parte (16.Sim. 174) 39 

(2 De a. M. 

& G. 900) 64, 73 

Me 74 

V. JFane 41 

Brady, Me 12, 13 

Braginton v. Tates 268 

BraUey, Me 42 

Braithwaite, Me 40 

V. Kearos 428 

Bramble, Exparte, Me Toleman and 

England 17 

Brampton Ky. Co., Me 50 

Brancker, Me 78 

Brandon, Me 41, 339 

V. Brandon (1 Dr. & Sm. 

16) .... 472 

(2Dr.&Sm. 

305; 9Jur. 
N.S.ll).. 34, 
37,41 

(llJnr.N.S. 

30) 41 

Bran£am, Me 485 

Branford v. Branford 383 

Branmer, Me 43 

Branson, Ex parte 6 

BranwMte, Exparte 280 

Brasnett's Case, Me 492 

Brass, Me 73 

Brassington v. Cussons 396 

Braund v. Earl of Devon 61 

Braye (Baroness), Exparte .... 30, 42 

Me 43 

Bredioot (Vicar of). Ex parte 32 

Breeze v. English 397 

Brent, Me 58 

Brentnall, Me 81 

Brewer, Ex parte 28 

Me 26 

V. Torke 517 

'Brewster v. Thorpe 327 



FAOE 

Brioe v. Bannister 259 

Bridges, Me 280 

Bridgewater v. De Wintou 384 

Bridgman, Me 79 

Bridson». Smith 396 

Brier, Me 103, 397, 415, 506 

Bright V. TyndaU 372, 405 

Brigstooke v. Eooh 430 

Briscoe, Me 41 

Bristed v. Wilkins 459 

Bristol Eree Grammar School, Me.. 30 

(Mayor of) v. Cox 382 

and North Somerset Ry. 

Co., Me 171, 173 

Bristow 1). Booth 61, 76 

V. Whitmore 372 

Bristowe ». Needham 469 

British Farmers' Co., Me 511 

Imperial Corporation, Me. . 321, 

322 

Dynamite Co. v. Krebs . . 380 

Waggon Co. v. Lea 259 

Brittlebank v. Smith 435 

Broadhurst v. WUley 367 

Broadwood, Me (1 Ch. D. 438) 30 

(8L. T. 632) .... 61 

Brooas v. Lloyd 424 

Brooklesby, Me 54 

Broder v. Saillard 268 

Broke (Lprd), Exparte 39 

Bromley, Me 7 

V. Williams 335 

Brompton Waterworks, Ex pa/rte .. 50 

Brook, Me 17, 107 

Brooke v. Bockett 4 

V. Brooke 435 

V. Todd 353 

V. Wigg 411 

Brookfield v. Bradley 380 

Brooking, Me ; 43 

Brown, Me (4 Eq. 464) 11, 558 

(29 Beav. 401) 404 

(Ethel) 98,260 

Ward V. Morse 540 

andSibly 108 

V. Dawson ....1.., 342 

V. De Tastet 399 

V. Eenwick , 38 

V. Gellatly 548 

V. Lee 386 

V. Oakshot 475 

». Pearson . . . . , 396 

V. Eye 271 

V. Sewell 390, 651 

V. Tibbits 4 

V. Trotmaa 17, 265 

, Weatherhead 338 



Brown's Will, Me 143, 149 

Browne, Me 13, 14 

Browning v. Sabia 455 

Bruce v. WiUis 35 

Bruiton v. Birch 345 

Brunt, Me go 

Bryan, Me 455 

Bryant, Me 61 

V. Bull 464 

Bryson v. Warwick and Birming- 
ham Canal Co 426 

Buck, Ex parte 45 



TABLE OP CASES. 



PAGE 

Buck V. Eobson 269 

Buckia^ham, £e 28 

«. SdHck 183 

Buokmghamshire Rly., Se 29 

Buckley, Se (17 Beav. 110; 17 

iTir.478) S2 

, (Johns. 700) 67 

V. Cooke -iZS 

Bucks Kly., Se 41 

Buokton V. Higgs 367 

Budding v. Murdoch 377 

Budge t>. Budge 374 

Buenos Ayres Gas Co. ». Wilde . . 188 

Bugden v. South 383 

Buist V. Bridge 455 

Bulkeley v. Earl of Eglinton . . 80, 88 

V. Hope 405 

Bulley V. BiiUey 18 

Bullock V. Corry 383 

Bunn, Hx parte 493 

V. Biinn 383 

Burbridge v. Robinson 388 

BurcheU v. Giles 379, 553, 556 

Burdick ». Garriok 618 

Burgess, Jte 81, 338 

Burgoine J!. Moordaffi 411 

V. Taylor 377, 418 

Burke, He 57 

V. Hutchinson 642 

V. Eooney 374 

Burkinshaw v. WUson 566 

Burlinson v. Hall 259 

BumeU, iJe 42 

V. Bumell 183, 396 

Bums V. Irving 460 

V. WaUord 309, 330 

Burr V. Hubbard 393 

Burrard v. Calisher 421 

BurreU v. Maxwell 87 

Burroughs, JJ« 108 

Burry Port Co. v. Bowser 341 

Buisill V. Tanner 193, 200, 330 

Burstall v. Beyfus .... 334, 363, 371 

V. Bryant 509 

V. Eearon 362 

Burt, lie 77, 89 

V. Sturt 405 

Burton v. Roberts 466 

Bush, Se 4, 5 

V. Martin 7 

Bustros V. Bustros 322, 327 

V. White 382, 388, 610 

Butcher ». Pooler 266 

Bute (Marquis oi), Se 69 

Butler's WiU, Se 30 

Butler, He 267 

■ V. Butler 336, 350 

V. Gardener 341, 478 

Butlin V. Arnold 400 

Butterfield, Se 39, 43, 44 

V. Mott 491 

Byam v. Byam 372 

«. Sutton 346 

Bye V. Ejrby 330, 544 

Byng.i). Clark 386 

Byrch, Se 6, 9 

Byrd v. Nmm 359, 378 

Byrne, Jie 79 

Byrom, He 41, 42, 43 



Byron, Ite (1 De G. J. & S. 358) . . 39 
Byron i2« 23 Ch. D. 171) . . . . 28, 148 

— — 31W. R. 617) 144 

(W. N. (1883), 67) ... . 30 

Byron's Settled Estates, Se .... 39 



C. 



Cabbum, Se, Gage v. Rutlajid . . 540 

Cadman r. Cadman 402 

Caillard v. CaiUaxd 469 

Caister v. Chapman 349 

Caldwell v. Pagham Harbour Co. 305, 

378 

Cable Valley Co., .E« 179 

Calton, Se 31, 486 

Calvert v. Davidson 544 

V. Godfrey 497 

Cambrian Rly., Se .... 170, 171, 176 
Cambridge (Corporation of), JSx 

parte 28 

Cameron, Se 56 

Cameron's Coalbrook Co., -Se. 383, 388 

CamiUe ». Donati 549 

Campana v. Webb 438 

Campbell, Se (3 De G. M. & G. 

685) 4,15 

(19 W. R. 427) .... 16 

(31 Beav. 176; 8 Jur. 

N.,S. 1199) 81 

V. Andrews 541 

». Dalhousie (Lord) .... 430 

V. Holyland . . 361, 478, 552 

V. Poulett (Lord) 393 

Camps V. Marshall 327 

Canaan Oilworks v. Hay 638 

Candy v. Maughan 608 

Cane v. Martin 9, 17 

Cann, Se 28 

Cannon v. Johnson 183 

Cannot v. Morgan 464 

Ca.nt, JEx parte 88 

Se 43, 44 

Canterbury (Archbishop of), Ex 

parte 31 

Capes i". Brewer 317 

Capital Eire Insurance Co., Se .. 17 

Capper, Re 407 

Cardell v. Hawke 601 

Garden, JEx parte 84 

CardinaU v. Cardinall 263 

Gardross, Se 103 

Carew, Se 10 

CargiU v. Bower 362, 378 

Carmarthen Rly., Hx parte 48 

Carney, Se 41 

Carpenter, Se 77, 89. 

1). Churchill (Lord) 89 

Carpmael v. Proffitt 40, 44 

Carr v. Morioe 438 

Carta Para Mining Co., Se 542 

Carter v. Carter 15 

— «. Sebright 88 

«. Stubbs 374, 538 

Cartwright, Se 7 

Carven, Se 7, 8 

Carver ». Pinto Leite 392 

Case V. Midland Rly. Co 494 



TABLE OF OASES. 



PAQE 

Casey v. Amott 320 

Cash ». Parker 351 

Cashin v. Craddook 387 

V. Cradook 360 

Cass V. Fitzgerald 389, 

Cassiopeia, The 316, 378 

Cast «. Poyser 4,27, 500 

Cater, Se 55 

Oatholio Publishing Co. v. Wy- 

man 427 

Catlia, Se (18 Beav. 512) .... 8, 484, 
549, 558 

(23 Beav. 412) 13 

Catlo-w V. Oatlow 16, 18 

Gator V. Croydon Canal Co 33 

Cattlin, Se 6 

Catton V. Bennett 348, 350 

Cavander, ijs , 512 

Cave, Ex parte 45 

V. Cave 464 

Cawdross (Lord), JSx parte 4 

Cawley and "Whatley, Be 12 

Cawthome, JJe 54, 55 

Cazneau, Me 58 

Cecil V. Langdon 118 

Central African Co. v. Grove .... 356 
Central News Co. v. Eastern Tele- 

gfraph Co 424 

Cercle Co. v. Lavery 267 

Chaffers v. Baker 327 

■ V. Headlam 346,, 347 

Chalmers v. Laurie 344 

Chamberlain, £x parte 30, 37 

He 58, 227 

V. Chamberlain .... 476 

Chambers, Se 8 

— = V. Kingham 258 

V. White 28 

Champ v. Stokes 4, 5 

Champemowne v. Brooke ,..,.. 380 

Champion v. Formby 371 

Champneys v. Burland .".177, 178 

Chaplin, Me 56 

Chapman, Se 551 

v. Mason 465 

V. Keal Property Trust 267, 

464 

Chappell V. Davidson 468 

Chard ». Jervis 512 

Charlton v. Allen 513 

17. Charlton 18, 557 

v. Coombes 383 

V. West 326 

Charras «. Pickering 642 

Chatfield v. Sedgwick 271 

Chatterton v. Watney 456 

Ohauncey, Me 65, 67 

Chauntler v. Eobinson 36 

Chaytor, Me 141, 144, 543 

Cheltenham Wagon Co., Me 188 

OhenneU, Me .... 266, 415, 511, 512, 

■ 640 

Cherry's Estate, Me 39 

Oheshunt College, Me 29, 51 

Chesterfield v. Black 378, 386 

Chichester v. Donegal! 384 

Child, :Ex parte 441 

V. Douglas 378 

ji. Stenning 334, 353 



Chilton v. Carrington 463 

». London (Oorporatiou of) 396 

China (Imperial Bank of) v. Bank 

of Hindustan 542 

China Steamship Co. v. Marine 

Insurance Co 463, 465 

Cholmondeley v. Clinton 17 

Chorlton V. DioMe 358, 417 

Christ (CoU. of) v. Martin 261 

Christ's Hospital, JEx parte Go- 
vernors of (20 Eq. 605) 41 

Christ's Hospital, JSx parte Go- 
vernors of (27 W. E. 458) .... 39' 
Christ's Hospital, JSx parte Go- 
vernors of (2 H. & M. 166) .... 39 
Christ's Hospital (Governors of), 

Me 40 

Christchnrch (Dean of), Hx parte 

(23 L. J., Ch. 149) 34 

Clmstohurch (Dean of), Hx parte 

(W.N. (1872) 201) 39 

Christohuroh (Dean of) v. East 

and West Junction Ely 172 

Christ Church, J2x parte 39 

Christie v. Cameron 318, 327 

V. Christie 360 

V. Ovington 107 

Christy, Hx parte 9 

Chubb V. Carter 470 

V. Pettipher 182 

Chuck V. Cremer 566 

Church V. Perry 386 

Churchill v. Bank of England . . 459 
Ohurton v. Frewen (15 W. R. 559 ; 

W.N. (1867) 101).. 548 

V. Frewin (2 Dr. & Sm. 

390) 383, 391 

Clack V. Wood -611 

Clagett, Me 258, 516 

Clapham v. Andrews 115 

Clarbrough v. ToothiU 252 

Claik, Jix parte 179 

Me 9 

V. Callow 359 

— 1). Clark 641 

V. CuHen 448 

V. Fergusson 641 

V. GiU 424, 426 

V. Malpas 549 

V. School Board for Lou- 
don 47 

V. Ward 77, 84 

V. Waters 327 

1). Woodward 231 

Clarke, Me 43, 98, 212 

«. Bradlaugh 311, 313 

V. Clarke 378 

V. Cookson 411, 412 

V. Jacques 478 

■ V. Law 427 

V. Lord Elvers 274 

». Eoohe 516 

V. Skipper 411 

Olarkson v. Parker 5 

Claxton, Exports 338 

Clay, Me 82, 100, 638 

and Tetley, Me 516 

Claydon v. Finch 454 

Claypole (Eeotor of), Ex parte ,. 29 



TABLE OF CASES. 



PAGE 

Clayton v. Clarke 338 

Clegg ID. Edmondson 382, 383 

V. Rowland 102, 343, 499 

Clement v. Griffith 439 

Clements, Se 188, 266 

V. Beresford 472 

». Norris 411 

ClenneU v. Clennell 443 

Clergy Corporation, £e 105 

Cleyeland's (Duke of) Harte Es- 
tates, Se 42, 462 

Cliffe V. WiUdnson 542 

CUfford V. Budds 330 

V. Turrill 17 

Clinch V. Financial Corporation. . 389 

Chnton, Be 32 

Jackson v. Slaney . . 85 

■ — V. Clinton 454 

aissold, iile 81 

CHtheroe's Trusts, Se 29 

Clough, Se 220, 380 

CloTer ». Adams 17, 18, 265 

V. Wilts Building Society 3S2 

Clowes V. HilUard '. 333 

Clntton, Hx parte 81 

Cobbett V. Lewin 328 

Cobbold V. Pryke 257 

Cobham v. Dalton 188 

Cockayne v. Harrison 18 

Cockbiirn v. Edwards 540 

. v.Teel 369 

V. Raphael - 472 

Cookerell it. Cholmeley 99 

Cockle V. Joyce 417 

Cookshott V. London Cab Co 417 

Cocq V. Hunasgeria Coffee Co. . . 464 
Coddington v. Jackson-ville Ry. . . 467 

Codrington, Se 31 

Coe, Se 66 

Co&elA., JBx parte 31 

Cohen v. Hale 456 

V. Walej 369 

Cole, Hx parte 188 

Se 9 

Coleboumev. Coleboume, 306, 468,469 

Colebroke v. Jones 541 

Colegrave v. Manley 17 

Coleman v. MeUersh 398 

V. West Hartlepool Co . . 188, 

391 

Coles V. Benbow 73, 91 

■ V. Civil Service Association. . 348, 

350 

CoUander v. Hawkins 371 

Collard v. Roe 64 

Collette V. Goode 358, 378 

CoUiugwood, Se 76, 78 

Collins' Charity, Se 31, 32 

Collins, Ilx parte 44 

■ V. Paddington Vestry 515, 516 

CoUinson, Se 77 

V. Ballard 397 

V. CoUinson 85, 89 

ColUs's Estate, Se 33 

Collyer v. Isaacs 660 

Cohnan v. SaieU 380 

Colquhoun, Se 6,9, 548, 558 

Colson, Se 59 

Colyer, Se 81 



PAOE 

Colyer v. Colyer (9 W. R. 452) . . 388 

(10W.R.748)..503, 

618 

(11W.R.355).. 344 

». Finch 518 

Commerell v. Poynton 17 

Commissioners of Sewers v. Gel- 

latly..272, 336 

V. Glasse . . 383 

Compagnie Finanoifere v. Peruvian 

Guano Co 387 

Compagnie du Pacifique v. Guano 

Co 393 

Compton V. Preston 353 

Conaoher v. Conacher 480 

Congreve, Se 558 

Conn ». Garland 464 

Conolan v. Leyland 193 

-Constantine, The 516 

Contract Corporation, Se, Goooh's 

Case.. 38S 
B. Tottenham 

Ry 168 

Conybeare, Se 81 

V. Lewis 373 

Oonyer's School, Se 79 

Cook, Se 369 

V. Broomhead 541 

V. Collingridge 399 

«. Dey 316, 317 

V. Enchmarch •. , 354 

- — - V. GiUard 5 

V. Heynes 396 

V. Rosslyn (Earl of) 13 

Cooke V. Turner 559 

V. Wilby 435 

Cooke's Contract, Se 108 

Cookes V. Cookes 398 

Cookson V. Bingham 402 

Coombes v. Brookes 80 

Cooper, Hx parte 44, 612 

and AUen, Se 108 

— ■ «i. Cooper , 518 

V. Ince Hall Co 467 

V. Jones 76 

V. L. C. & D. Ry. Co ... . 38 

— , V. Macdonald 80 

V. Moore 435 

V. Pitcher 653 

V. Vesey 335, 612 

V. Whittdngham 640 

Coore, Se 52, 486 

Coorg(Rajali of) «. East India Co. 382 

Cope V. Russell 316 

Copley, JEx parte 41 

V. Jackson 362, 644 

Copp, Se 274 

Coppard v. AUen 334 

Corbett v. Corbett 342 

V. Lewin 463 

Corcoran ». Witt 478 

Cork (Earl of) v. Russell 177 

Cormaok v. Beisley 17 

Corpus Christi CoUege, Ex parte 39 

CorseUis, Se 338, 387, 400 

Corser v. Jones 463 

Costa Rica (Republic of) v. Er- 

langer..385, 641, 542 
V. Strousberg . , 387, 452 



TABLE OF CASES. 



PAOE 

Cotter V. Metropolitan Ely 47 

Cotterell v. Strattou 266, 640 

Cotterill, i{« 81 

Coiilson, Ite (17 L. T. 27) '. 32 

(4 Jut. N. S. 6) . . 63, 54 

Course v. Humphrey 648 

Courtney v. Stock 641 

Courtois, Se 68 

Courts of Justice Commissioners, 

Se 44 

Coventry (Justices of), Se 59 

Coveny v. Athill 430 

Covington, Se 55 

Cowan, Jie 456 

Coward, JJe 108 

Cowbridge Railway, Be 177 

Cowdell, iJe 10 

V. Neale 4 

Cowley (Earl) v. "WeUesley 402 

Cox V. Barker 334 

«. Cox 52 

V. Eoley 271 

V. Stephens 345, 346 

V. Taylor .' 346 

Coyle V. Gumming 360 

Crabtree, He 88 

Cracknall v. Janson 437, 511, 512, 

563 

Cradock v. Owen 606 

. Cragg V. Taylor 459 

Craig V. Phillips 516 

Cramer, £x parte 346 

V. Cramer 91 

Crane, Se 42 

— . V. JulUon 317 

V. Kilpin 504 

v. Loftns 351 

Crause v. Cooper 64 

Craven, Ex parte 29 

Crawcour v. Salter 610 

Crawford v. Chorley 396 

V. Hornsea Brick Co. . . 649 

Steam Co. .. 614 

Crayoraft, Jle 449 

Credits Gerundeuse v. Van Weede 508 
Creech, St. Michael (Vicar of), Hx 

parte 42 

Cremetti v. Crom 451 

Cresswell, Be 52 

V. Byron 17 

V. Parker 320 

Crichton, Be 59 

Crick ». Hewlett 413,414 

Cripps V. Wood 116 

Crispin v. Cumano 454 

Croft V. CoUingwood 396 

Orofton V. Crofton, Be Boyse 423 

Crofts V. Middleton 423 

Croggam v. Allen 640 

Croker, Be 29 

Orompton v. Huber 505 

Crookes v. Whitworth 186 

Cropper v. Smith 617 

Croslknd v. Koutledge 367 

Cross, Re 510 

V. Maltbjr 606 

Crossley v. Stewart 386, 392 

Crouch V. Waller 341 

Crowder r. Shee 5 



Crowe, Be (13 Bq. 26) . . 64, 74, 78, 91 

(14 Ch. D. 304) 75 

(14 Ch. D. 610) ..66, 70, 81 

V. Bamicot 363, 378 

Crowle ». Eussell 257 

CrumUn Co., iJe 280 

Crump V. Baker 399 

V. Cavendish 331 

Culbertson v. Wood 103 

CuH, Be 54 

Cuming, Be 77, 78 

Camming, Be 19 

Cummins v. Fletcher 115 

V. Herron 615 

Cunard, Be 81 

Curd V. Curd , 397 

Curlewis v. Whidbome 463 

Curling v. Austin 397 

Currie, Be 12, 13, 67, 73, 81 

Curtis V. ShefBeld 352, 372, 616 

Curtius V. Caledonian Insurance 

Co 346 

Curwen, Be 30 

Oust, Be 77 

Cuthbert v. Wharmby 600 

Cutler, Be 57 



D. 



D' Adiemar (Viscountess) v. Ber- 

trand 80, 85 

Daiutree v. Haynes 342 

Dakins v. Grarratt 546 

Dalby, Be 6 

Dale V. Hamilton 476 

Dalgleish, Be 66, 70, 82 

Dallas V. Glyn 455 

Dallow -v. Garrold 18 

DaUy V. Worhan , 386 

Dalton, Be (1 De G. M. & G. 265 ; 

16 Jut. 253) 57 

(6 De G. M. & G. 201 ; 

2 Jur. N. S. 1077) 96 

Danford v. McAnulty 365 

Danger v. Nelson 408 

Damn v. Simmins 514 

Darby v. Darby. 404 

Darcy ». Whittaker 351 

Dartmouth Railway, Be 60 

Darwin v. Darwin 369 

Dashwood, Ex parte , 39 

Daubney v. Leake 499 

V. Shuttleworth 566 

Daubuz ». Lavington 309, 330 

Davenant's Charity, Be , 31 

Davenport 41. King 180 

V. Stafford 380, 631 

Davenport's Charity, Be 86 

Davey, Re 413 

V. Durrant 424 

V. MiUer 66 

David, Be 6 

V. Prowd 499 

V. Howe 271 

Davidson, Re 05 

Davie, Be 13 



TABLE OF CASES. 



FAQE 

Davies, M parte (16 Jur. 882) . . 88, 

544 

JJe (3 M. & a. 278) 89 

<9 "W. E. 134) 103 

«). Ballenden 377 

V. Boulcott 346, 347 

v. Chatwood, Me AHen . .7, 548 

. V. MarshaU (No. 2) . . 549, 551 

V. Nixon 341 

V. Otty 428 

— V. Stevens 330 

V. Williams 275, 387 

Davis, JJfi (8 Eq. 98) 435 

(12 Eq. 214) 64, 81 

(3 De G. & J. 144 ; 4 

Jur. N. S. 1029) .... 29 

». Andrews 451 

V. Barrett 469 

V. Chanter 79 

1). Davis 265 

V. Duke of Marlborough. . 469 

V. Dysart (Earl of) (20 

Beav. 413) 372 

(21 

Beav. 124) 8 

V. Flagstaff Co 275 

V. James 356 

V. Morris 324, 338, 448 

v. Spence 331 

Davis's Estate, Re 28 

Davyf). Garrett 355, 356, 360, 610 

V. Price 472 

. Daw ». Eley 188, 383 

DawMns v. Morton 506 

Dawson, JB,e (28 Beav. 605) 11, 13 

(6 N. E. 346) 65 

(3 N. R. 397) . . 78, 80, 81, 

85 

I-. Beeson 480,566 

— • V. Jay 478 

V. Eaynes 472 

Day, He 462 

. V. Batty ._ 347, 499 

I). Brownrigg 468 

V. Croft 472 

V. Radcliffe 337 

V. Whittaker 217, 407 

Dean «. Thwaite 398 

V. Wilson 475 

Deanes v. Kitchin 317 

Dear v. Sworder 364 

Dearden, Re 13, 558 

De Bay v. GrifBn 7 

De Beauvoir, Re 40 

De Brito V. Hillel 441 

D'Epineuil, Re 280 

Deere, Re 188 

Defries ». Creed 469 

De Hart ». Stevenson 336 

D'Hormusgee v. Grey 333, 541 

De la Rue v. Dickinson 392 

De la Touohe, Re 58 

Delves v. Delves 475 

De Montbrun v. Hirsoh 318 

Dempsey v. Dempsey " 475 

Dence ®. Mason 516 

Dendy, Re 9 

Denison v. Hardings 318 

Denning v. Henderson 475 



Dennis, JJ« (12 W.E. 575; 3N.E. - 

636) 79, 81 

(5 Jur. N. S. 1388).. 102 

V. Orompton 354 

- V. Morris 464 

- V. Seymour 331 



Densem v. Elworthy 335 

Dent v. Basham 9 

V. Dent 454 

v. Sovereign Life Assurance 

Co 411 

Derbishire v. Home 397 

Derby Municipal Estates, Re .... 28 

Derriman, Re , 39 

Desborough v. Harris 55 

Devaynes v. Eobinson ..334, 335, 345 

De Visme, Re 77 

Devon & Somerset Ely., Re. . 171, 172, 

175 

De Voy v. De Voy 91 

Dewdney, Ex parte 4 

De Windt f . De Windt 372 

De Winton ». Mayor of Brecon . . 469 

Diamond Fuel Co., Re 517 

Dick V. Munden 541 

Dicken v. Hamer 4 84 

Dicker v. Clarke 317 

DicMn V. DicMn Ill 

Dickinson, Re 81, 491 

Dicks V. Brooks 511 

V. Yates 266, 539, 540 

Dickson, JJ« (8 DeG.M.G. 655).. 10, 

11, 13 

(W. N. (1884) 235 . . 121 

(W. N^(1872) 223; 27 

L. T. 671).. 72, 73, 75, 81 

(1 Sim. N. S. 34) . .55, 56 

«. Harrison 267 

Dier v. Martin, Re Martin 506 

Digby 11. Turner 189 

Dimes ». Wright 5 

Dinning v. Henderson 41, 504 

Disney, Re 57 

Ditton, jEx parte, Re Woods 4 

Divers, Re 28, 39, 45 

Dii V. Groom 375 

Dixie t). Wright 28 

Dixon, Re 66, 72, 73, 75, 81 

— V. Jackson 29 

v. Morley 58 

V. Wilkinson 472 

V. Wrench 459 

». Wyatt 400 

Docker, Ex parte, iJc Heritage ..5, 10, 

13 
Docwra, Re, Doowra v. Faith .... 498 
Dodd, Re (W. N. (1871), 83) ... . 40 

(6 W. E. 174) 434 

Dodds ». Gronow 183 

V. Shepherd 609 

v. Tuke 395 

Dodkin 4-. Brunt 81 

Dodson V. Sammell (1 Dr. & Sm. 
675; 9W.E. 

887) 101 

(8W.E. 252).. 380 

Dodsworth, Re 57 

Doe d. Hutchinson ». Manchester, 
Bury & Eoseudale Ely. Co 36 



TABLE OP CASES. 



XXXI 



FAOE 

Boggett V. Eastern Counties Ely. 24 

Dolman, Me. 5 

Bolphin V. tayton 456 

Domville v. Lamb 404, 406 

Doodson ». Turner 189 

Doody V. Higgins 344 

Douglas V. Aj^hbutt 440 

V. L. & North Western 

Rly. Co 36 

Douthwaite v. Spensley 606 

Dove, Jte 606 

Do-wdes-vrell»..Dowdeswell..267, 343, 

418 

DowEag, Se 32, 42 

V. DowKng 372 

V. Hudson 469 

Downea, Se 10, 12, 14 

Downing College Case 559 

Doyle V. Kaufman 316, 538 

Drake, Se (22 Beav. 438) 11,12 

(8Beav. 123) 13 

». Drake 518 

V. Symes ,..., 337 

V. Tiefusis 29 

Draper, Se (2 W. R. 440) 81 

(9 W. E. 805) 77, 78 

V. Manchester, &c., Biy. 

Co 391 

Drapers' Co. v. McOann 108 

Drennan v. Andrew 341 

Dresser v. Morton 341 

Drever v. Maudsley 472 

Drevon v. Drevon 435 

Drew, Se 13 

V. Clifford 5 

Drewe, Se 81 

Drewery, Se 57 

Drinkwater v. Eat<;liffe 180, 181 

Driver, Se 66, 79 

Dryden v. Foster 466 

V. Erost 436 

Duce, Se 65, 80 

Duekett v. Grover 333 

Dudley, Se 189 

Dufaur V. Sigel 540 

Duffield V. Elwes 445 

Dummer, Se 29 

Dunkirk Colliery Co. v. Lever . . 421 
Dunn ». Dmm 391 

V. Hales 4 

Dunraven Co., Se 263 

Duntv. Dunt 13 

Dupuy V. Welsford 338 

Durrant v. Eicketts 330 

Dyke v. Cannell 268 

Dylar, Se 40 

Dymond v. Croft 317, 367 

Dynevor Co., Se 352 

Dyson v. Piokies 407 



E. 



E. v-V 305 

Eade v. Jacobs ' 385 

V. Winser 457 

■ V. Johnstone 321 



PAGE 

Earl, Se , 435 

Earle v. Sidebottom 400 

and Webster, Se 167 

Earp ». Lloyd 386 

East, ii«(2W. R. HI) 42 

(8 Ch. 735) 80,- 83, 84 

East Lancashire Ely. Co. v. Hat- 

tersley 439 

and West Junction Ely. Co., 

Se 171, 173 

Eastern Counties Ely. Co., Ex 

parte 48 

V. Tufnell 45 

Eastwood V. Clark 491 

Eaton V. Storer 369, 374, 538 

Eberaley's Co., Se 409 

Ebrard v. Gassier 541 

Eocles V. Liverpool Borough Bank 479 
Ecclesiastical Commissioners, JSx 

parte (13 W. E. 675) 43 

(39 L. J., Ch. 623) 40 

(W. N. (1873), 173) 39 

Eokersley v. Eckersley 380 

Eden v. Naish 257 

■ V. Thompson 41, 42, 44 

V. Weardale 348, 356 

Edgington v. Eitzmaurice 543 

Edmonds v. Foley 388 

Edmunds, Se 15, 40, 43 

Edward Sixth's Almshouse, Se ., 30 

Edwardes v. Burke 541 

Edwards, Jix parte 37 

Se 64, 189, 339 

■ V. Edwards 469 

V. Grove 462 

V. Harvey 232 

V. Lawless 4 

V. Lowther 336 

V. Spaight ■. . 423 

Egerton v. Anderson 363 

Eggington v. Cumberlege 4 

EgUngton (Lord) v. Lamb 388 

Egremont (Lord), Se 32 

Elderton, Se 98 

Eldridge, Se 6 

V. Burgess 351, 417 

Electric Telegraph Co. v. Nott . . 439 

Elgar, Se 55 

Ellerthorpe, Se 66, 68 

Ellioe ». EoupeU 430 

Elliot, Se 66 

EUis, Se 64, 66, 75, 82 

V. Eobins 433 

'EQiaon, JEx parte 30 

Se (8 De G. M. & G. 62). 39 

(2 Jur. N. S. 62) . . 81, 82 

V. Thomas 510 

Elliston V. Sheldrake 327 

Elmer v. Creasy 392 

Elmore, Se 103 

EhnsUe, Se (12 Beav. 638) .... 6, 12 

and Co., Se (9 Eq. 72) . . 5, 10 

(16 Eq. 326) . . 7 

Elsom, Se 267 

Elwes, Se 103 

V. Elwes 402 

Ely (Dean of) v. Gayford . . 345, 347 

Emden v. Carte 17, 18 

Emeny v. Sandes 541 



TABLE OF CASES. 



PAOB 

Emma Mining Company v. Grant 413 

Silver Mining Co., Re.... 429 

Emmet, Re 615 

England v. Lord Tredegar 101 

Engleheart v. Moore 4 

EngUsh, JS« 44 

V. Tottie 382, 383 

EnthoTen v. Cobb 389 

Equitable Eeversionary Interest 

Society v. EuUer 369 

Ernest v. Partridge 549 

Esgair Mining Co., Re 493 

Etherington v: Wilson 266 

Eton College, Ex parte (3 Ely. Ca. 

271; 15 Jnr. 46) 40, 41 

Enropean Banking Co., Re 548 

Evans, Ex parte 8, 469 

JJeWatkins .... 177 

Re (30 Beav. 232) 103 

(UCh. D. 511) 30 

("W. N-. (1873) 46) ... . 37 

(7 Ch. 609; 41 L. J., 

Ch. 512 ; 20 W. E. 

695; 26L. T. 815).. 66, 
69 

Jane 30 

V. Bear 189 

V. Buck 334 

V. Edwards 541 

1). Evans 180 

V. Louis 387 

V. 'WiUiams 104 

Evelyn v. Chippendale 541 

S.Evelyn 374,413 

Everett, jBe 53 

V. Prythergcb 188 

Everson v. Matthews 341 

Ewart V. WiUiams 398 

Exchange Bank ». Billinghurst . . 511 
Eyre, Be (49 L. T. 259 ; W. N. 

(1883), 153) 122 

(10 Beav. 569) 7 

(4 Kay & J. 268) 476 

V. Barrow 188 

V. Cox 306 

, Re Jones 315, 538 

V. Hughes 255 

V. Morering 337 

V. Shaftesbury (Countess of) 98 



E. 



F ,Re 7 

Eagg, Re 65, 56 

Eairolough v. Marshall 258 

EaithfuB, ife 17 

V. Ewen 18 

Fane v. Fane 640 

Farington, Re 6 

Parquiarson v. Pitcher 479 

Farr v. SherifEe 548 

Farrant, Re > 84 

Farrell v. Wale 417 

Farrer v. Sykes 438 

Farrow v. Austin 540 

V. Eees 549 



FAQE 

Faulkner v. Daniel 469 

Faversham Charities, Re 30, 32 

Fawthrop v. Stocks 183 

Feame v. Wilson 8 

Feams v. Young 39= 

Feaver v. Williams 383 

TTa llrin v. Lord Herbert 383 

FeUowes v. Deere 337 

FeUows, Re 83, 84, 88, 484 

V. Barratt 338 

V. Thornton 456 

Feltham, Re 55 

Felthouse v. Bailey 426 

Fennel v. Brown , 439 

Fennings v. Humphrey 566 

Fenton v. Crickett 558 

V. Cumberlege . .428, 439, 490 

Ferguson v. Benyon 436 

V. Ferguson 189 

V. WUson 539 

Femandes, Re 20 

Fernandez, Re 426 

Femyhough v. Naylor 437 

Ferrand v. Mayor of Bradford . .. 566 
Ferrers (Earl) v. Stafford & Ut- 

toxeter Ry 38 

Ferrler v. Atwool 383 

Ferrior, Re 65 

Fiddey, Re, Heinrich v. Sutton . . 16 

Field, Re (16 Beav. 593) 7 

(W.N. (1877), 244).... 7 

V. Carnarvon Ely. Co 47 

V. Field 465 

V. Seward 504 

Fielden ». Hornby 227 

Finch, Re 42 

V. Jukes 108 

Finlay v. Davis 410 

V. Scott 348 

Finnegan v. James ,...,■ 392 

Finney, Re 68 

V. Hinde 460 

Fiott V. MuUins 429 

Firmin v. Pullen 55 

Fislier, Re (18 Beav. 183) 7, 14 

(W. N. (1881), 137 ; 30 

W. E. 57) 60 

V. Bunbury .' 541 

V. Coffey 433 

V. Fisher 38 

V. Hughes 85 

V. Owen 360, 385 

V. Val leavers Asphalte 

Co 279 

Fishmongers' Co., &;^<sr<e .... 41 

Fitton V. Macclesfield 341 

Fitzwater, Re 376 

Flack, Re 58 

Flamank, Ex parte 37 

Flattery v. Anderson , .... 341 

Fleming v. Crouch 180, 181 

V. East 506 

Flemon, Re 40 

Fletcher, Ex parte 69 

V. Dodd 472 

V. Eodgers 468 

Flintoff V. Haynes 502, 504 

Flitchcroft, Re 76 

Flood, Re 120 



TABLE OF CASES. 



PAGE 

Flower, JEx parte , 7, 38, 39 

Se 5 

, and Metropolitan Board 

of "Works 123 

r. Bright 537 

V. Leyton (Local Board of) 305 

r. Lloyd 253, 407, 510 

r. Newton 4 

V. Todd 350 

Fluid V. Fluid 369 

Fluker, Se 5, 6 

Foat V. Margate (Mayor of) .... 306 

Foley, Ex parte 5, 642 

o. Smith 14, 374 

Foligno, Be 55 

Foljambe, Re 14 

Fooks, Se 48 

Forbes, Ee 435 

V. Tanner 392 

Ford and Hill, He 108 

V. De Pontes 382 

V. Dolphin 388 

V. Tennant '. 383 

V. Tynte 494 

Fore Street Co. v. Durrant 318 

Forest, Re 101 

Forester v. Kead 361 

Forsbrook v. Forsbrook 405 

Forahaw, Ee 17 

Forster v. Davies 79 

V. Menzies 317 

Forsyth, Ee 4, 7, 10 

Fortesoue v. Fortescue 387, 388 

Fortune, Ee 55 

Foster, Be 5, 12, 13, 14 

«. G. "W. Ry. Co 540 

and Lister, Ee 108 

i: Cantley 338 

V. Dawber 80, 82 

V. Edwards 266, 408 

V. Foster 182, 397, 398 

V. Gamgee 371 

V. Harvey 438 

V. Parker 78 

Foulds V. Midgeley 430 

Fowler v. Barstow 306, 321, 322 

V. Bayldon 345 

«>. Davies 341 

«;. Knoop 348 

V. Eoberts 466 

J). Scott 182 

Fox V. Amhurst 29 

V. Bearblock 506 

«.Blew S42 

«!. Charlton 15 

Foxen v. Foxen 499 

Foxon V. Gascoigne 18 

Poxlowe V. Amcoats 397 

FoxweU V. Webster 466 

Fozaid, Ee 68, 60 

Frampton v. Webb 327, 544 

Francome v. Francome 439 

Franklin v. Featherstonhaugh . . 8 

'Ersea^jia., Ex parte 31 

Eraser v. Cooper 336 

,;.HaU&Co 364 

V. Thompson 644 

Freason v. Loe 374, 413 

Freehold Land Co. v. Spargo 542 



PAQE 

Freeman r. Butler 384 

V. Fairlie ■... 388 

Freemen and Stallingers of Sun- 
derland, Ex parte 36, 37 

French, Be 102 

Freston, Ee 189 

Friend v. SoHy 558, 659 

Fi-itz V. Hobson 380, 478 

Frodsham v. Frodsham .... 86, 92, 487 

Frost V. Hamilton . , 397 

Frowd w. StiUard 5 

Fry, Ex parte 341 

V. Ernest 188 

Fryer v. Wiseman 340, 422 

FuIliam,JSc 88 

FuHca,The 465 

Fuller V. Alexander , 331 

Fuller's Settlement, Ee 96 

Furber v. King 317,386 

Fnmess v. Booth 355 

FusseU V. Dowdiag 352 

Futvoye v. Kennard 188 

Fyfe v. Arbuthnot 372 

Fyfe'sCase 345 

lyier i>- Fyler 380 

Eyson, Ee 10 



G. 

Qc.v.^B. 361 

Gage V. Kutlamd, Ee Oabbum . . 540 

GaitskeU, Be 6, 7 

GaUiers v. Metropolitan Ey 36 

Galloway v. Corporation of Lon- 
don 7 

V. Mayor of London . . 618 

Gamston (Rector of), ia;i)«rfe .. 29 

Gandee v. Stansfield 384 

Gandy v. Reddaway 549 

Garbutt v. Fawcus 257 

Garcias v. Ricardo 518 

Gardner, Ee 65, 68, 470 

V. Cowles 64, 91 

• V. Irvin 388 

V. London C. & D. Rly. 

Co 178, 469 

Gare, Ee 252 

Garey v. Whittingham 548 

Garland v. Garland 469 

Garhck ». Lawson 372, 405 

Garling v. Royds 411 

Gamett, Be 489 

V. Bradley 38, 271, 539 

Gamett Orme, Be 141, 149 

Gamier, Be 57, 59 

Garrard, Ex parte 614 

Garrod v. Holden , 341 

Gartside, Ee 79 

Garty, Be 79 

GaskeU, Ex parte 39 

V. Chambers 319 

Gaskin J). BaUs 468 

Gates V. Buckland 436 

Gath V. Webster 332 

Gathercole v. Smith 355, 516 

Gaunt V. Taylor 648 

C 



TABLE OF CASES. 



PAOB 

Gaudet, Re.. 257 

Qairthorpe v. Gairthorpe 468 

Gay V. Labouchere 385 

Gedye, Re 5, 7 

Gee V. Gee 338 

General Estates Co., Se 605 

Exchange Bank v. Homer 188 

Share Co. v. Wetley Co. . . 380 

Gething v. Keighley 398 

Gibbm,-ffie 81, 117 

Gibbings v. Strong 376 

Gibbon, Re 80, 88 

Gibbs V. Daniel 617 

V. Haydon 116 

V. Phillipson 188 

Gibraltar Banking Co., Me 439 

Gibson v. Wills 345 

V. "WooUard 474 

Giddings v. Giddings 542 

Gilbert v. Comedy Opera Co 440 

V. Endean 434, 445 

V. Guignon 658 

V. Russell 444 

». Smith.... 180, 181, 183, 396 

Giles V. Hamer 17, 18 

Gill V. GJlbard 437 

jj.Woodfin., 376 

GiU'sCase 280 

GiUatt, Re 81 

Gillespie v. Alexander 600 

Gillow V. Rider 7 

Giraud, Re 79 

Girvin v. Grepe 331 

GlanviUe, Re 92, 380 

Glazbrook v. Gillatt 462 

Glebe Lands of Great Teldham, 

Re 38 

GledhiU «, Hunter 325, 353 

Gledstanes, Re 54, 61 

Glendeiming, Re 55 

Glenny and Hartley, Re 80 

Glossop V. Heston Local Board . . 422 

Gloucester Charities, Re 79 

(Dean of), Ex parte .... 34 

Gloucestershire Banking Co. v. 

Phillipps 193, 285, 348, 349 

Glover v. Ellison 399 

Goddard v. Jeffreys 612 

V. Haslara 345 

V. Parr 437 

Godden ». Corsten 309 

Godfrey, Re 53, 70, 73, 76 

Goe, Re 43 

Gold, Re 10 

Grolding V. Wharton Saltworks 

Co 331, 360, 610 

Goldsmith v. Goldsmith 342 

Gombault, Re 68, 439 

Gooch, Re 30 

Goooh's Case, Re Contract Cor- 
poration 385 

Good Intent Benefit Society, Re.. 65 

V. Blewitt 499 

Goodale i-. Gawthom 426 

Goode V. West 66, 67 

Goodrich v. Marsh 183, 335 

Goodsman, Re 63 

Goodwin ». Archer 542 

Goold, JJ« 351 



PASB 

Gordon, Re 66 

V. Dalzell 10 

V. Jennings 456 

GoreLangton, Jfc 39, 42, 43 

Gosling V. Gosling 372, 406 

Goss, Re 436 

Gosset V. Campbell 376 

Gough V. Bage 77, 88 

V. Heatley 396 

Gould, Ex parte 113 

Gover v. Stilwell 66 

Gowran v. Bamett 641 

Grace v. Baynton 64, 78 

Graham v. Campbell .... 265, 468, 512. 

. V. Graham, 399 

v. Wickham 558 

Grainge, Ex parte 30 

Grange, Re 81 

v. White 186 

Grant, Re (2 J. & H. 764) 88 

V. Banque Eranco-Egyp- 

tienne 616, 517, 618 

■ V. Easton 309, 330 

V. Grant (34 L. J., Ch. 641 ; 

e N. R. 347) 81 

V. Grant (5 Russ. 189) . . 378 

Gray v. Lewis 334 

V. Webb , 365 

Grayson,. Re . .^ .,,.., , . 91 

Great Australian Co. v. Martin . . 322 
^ Eastern Ely. Co. v. Nor- 
wich and Spalding Ely. 

Co 662 

Northran Ely. Ex parte . . 48, 49 

Re Ill 

Co. V. Ta- 

hourdin .. 168 

Southern and WestemEly. 

Ex parte 44 

Western Colliery®. Tucker 392 

^ Rly. Co., Ex parte 46 

Greaves, Re 308 

V. Fleming 367 

V. Keene 189 

Green, Re (26 Ch. D. 16) 17 

(lOCh.272) 83 

(2 De G. E. & J. 121) 101 

(8 W. R. 403, 6 Jur. 

N. S. 530) .... 102, 103 

v. Angell 106 

V. Bennett 411 

». Chamock 541 

V. Measures 344 

». Sevin 368, 359, 378 

». Smith 280, 281 

Greening D. Beokford 461 

GreenaiU, Re 466 

Greenwood, Re , 69 

V. Churchill 658 

V. Sutherland ...... 405 

Greer v. Toung 16, 18 

Gregg, Re 8, 12 

V. Taylor 6 

Gregson, Re 888 

Greig v. Somerville 499 

Gredey v. Mousley 383, 389 

Gretton v. Mees. 367 

Greycoat Hospital v. Westminster 
Commissioners 317 



TABLE 01" OASES. 



PAGE 

Gridley v. Austen 4, 5 

Griersou v. Astle 88 

Griffin v. Allen 513 

Griffith, JJe 10 

V. Blake 468 

Griffiths 4'. Cambrian Rly 172 

V. Cowper 317 

V. GrifEths 17, 475 

Grills ». Dillon 517 

Grimoldby (Rector of), ie^arte.. 28 

Grimsby v. Webster 462 

Grimwood v. Bartels 182 

V. Shave 341 

Groom, Se 89 

Groome v. Eathbone 331 

Grove, Me 57 

V. Samson 6 

Groves v. Carbert 180 

V. Groves 391 

V. Levi , 345 

Grundy v. Buokeridge 81 

, Kershaw, and Co., Se .. 10 

Gu^ret V. Young ...'. 653 

Guest V. Cowbridge Ely 177, 179 

«.. Neames 231 

■^. Smith 476 

Guibert, He 80, 81 

Guilden Sutton (Lioumbent of), 

Sx parte 39, 40, 41 

GunneU v. WHtear 54, 55 

Gnnson v. Simpson 70, 81 

Gumey v. Gnmey 372 

Gwyer v. Peterson 466 



H. 



H., Me 468 

Habershon v. GiU 467 

Hacking ». Whalley 185 

Haddan, Se 384 

Hadgett v. Conmiissioners of In- 
land Revenue 94 

Hadley, Se 79 

V. MacdougaU 389 

Haggitt V. TTiifP 435 

Haigh V. Ousey 5 

Hair, Se (10 Beav. 187) 5, 6 

(11 Beav. 96J 7, 9 

(8 Scott N. R. 231) .... 15 

Haire v. Lovitt 42, 43, 44 

Hakewell, Hx parte 341 

V. "Webber 417 

Haldane v. Eckford 387 

Hall, Sx parte ...,259, 468, 514, 552 

Se 30, 62 

V. Austin 334 

& Barker.iJe 7, 17 

Dare, Se 108, 125 

V. Eve 355, 359 

i;. Hale 64, 77, 78 

1-. Hall 462 



PAOE 

Hall V. Liardet 384, 393 

V. Pritchett 456 

Hallett, JJ« 11 

HalsaU, Se 5 

Halsey, Se 30 

Halstead United Charities, Se .. 42 

Haly V. Barry 459 

Hamburger v. Poetting 541 

Hamer v. Giles 17, 18, 456, 457 

Hamilton v. Davies 317 

V. Hector 99 

V. Nott 383 

Hamlyn v. Bettely 420 

Hamond v. Walker 335 

Hampden v. Wallis 445, 455, 479 

Hampaon v. Hampson 383 

Ham's Trust, Se 66 

Hampton v. Hohnan 372 

Hanbury, Se 39, 40, 148 

Hancock v. Guerin 387 

Hancox v. Spittle 66,72, 82 

Handley v. Davies 64 

V. MetcaUe 68 

Haney, Se 60 

Hankey v. Morley 52, 68 

Hanmer v. FKght 331 

Hannaford v. Hannaford 17 

Hanover (King of) v. Bank of 

England 79 

Hansen v. Maddox 509 

Hansford, Se 53, 59 

Hanslip v. Kitton (8 Jur. N. S. 

835) 563 

(1 De G. J. & 

S. 440) .... 387 

Harbord v. Monk 382 

Harborough (Earl of) v. Shardlow. 35 

Hx parte .... 40 

Hardiman, Se 180, 185 

Harding, Se 13 

V. Tingey 378 

Hardley, Se 52, 53 

Hardman, Hx parte 84 

Hardwick v. Wright 398 

Hardwicke (Earl of), Ux parte.. 28, 40 

Hardwidge, Se 267 

MaxAj, Sx parte 28 

Se 41 

Hare v. Hare 401, 404 

Harford, iJ« 81 

Hargreaves v. Scott 551 

V. Wright 68, 70, 78 

Harker, Se 513 

Harle, Se 7, 13 

Harlook v. Ashberry ........ 363, 616 

Harper, Se 12, 14 

Harpham v. Shaoklook 265, 612 

Harries, Se 12 

Harrington v. Harrington 518 

Harris, Ux parte 84, 88 

Se (2 W. E. 442) 57 

Se (7 Jur. N. S. 166) .... 433 

». Aaron 266, 512 

V. Fleming 320, 517 

V. Gamble 355, 358, 359 

V. Hamlyn 544 

V. Owners of the Eranconia 321 

V. Jenkins 356 

V. Jewell 460 

c2 



TABLE OF CASES. 



FAOE 

Harris v. Petheriok , , 539 

V. Start 6 

Harrison, Me (Seton, 616) 64 

JJc (13 Ch. D. 603) .... 512 

Re (22 L. J., Cli. 69) 79, 80 

lie ("W. N. (1883), 31) . . 119 

V. Botteuheim 331 

V. BoydeU 472 

V. Com-waURly. Co. 18, 401, 

402, 612 

r— V. Leutner373, 374, 655, 560 

r. Smith 65,77,90 

— 11. Stewardson 316 

Harrop, Se (3 Drew. 726) 28 

Se (24 Ch. D. 717) . . 148, 149 

£x parte 37 

Harry v. Davey 336 

Hart V. Hart 257 

V. Herwig 317 

V. Tulk 469 

Harter v. Colman 115 

Hartington, Rector of, Ilx parte , , 29 
Hartley, Be (2 Jui. N. S. 448) . . 9 

(30 Beav. 620) 10 

("W. N. (1879), 197).. 181 

V. Dilke 317 

V. Owen 392 

Hartmont v. Foster 266 

Hartnall, iJe 66, 73, 74 

Hartwell v. Colvin 499 

Harvey, Se 64 

V. Bradley 398 

V. Brooke 476 

V. Croydon Sanitary Au- 
thority 266 

V. Hall 188, 189, 455 

V. Harvey 456 

V. Mayhew 8 

Harwood, Se 91 

Hautie v. Hastie 511 

Hastings v. Hurley 320, 538 

Hatch V. Searlea 603 

Hattatt, Se 81 

Hatton V. Haywood 177 

Ha-w V. Viokers 346 

Hawes ». Bamford 433 

Hawkes, Se 58, 59 

Hawkesley v. Gowan 461 

Hawkins, Sx parte 37 

r. HaU 188 

V. Morgan 464 

Hawks V. Hawks 24 

Hawthorn v. Harris 316 

Hayoook, Se 52 

Hayes, Se 30 

Hayne, Se 37 

V. Cavell 562 

Haynes v. Barton 41 

e. Cooper 18 

Hays V. Trotter 8 

Hayter, Se 491 

Hayton v. Beall 452 

Hayward, Se •. 44 

V. Hayward 492, 493 

V. Pyle 346 

V. Smith 182 

V. Stephens 436 

Hazle, Se 153 

Headden v. Emmott 345 



PAOE 

Headingtou, Se 64 

Healdi'. Hay 317 • 

Heapby, Se 80 

Heard v. Borgwardt 337 

V. Cuthbert 88 

Heath I'. Fisher 474 

V. Pugh 260, 353 

r. Wallingford 440 

Heather, Se 8 

Heatley v. Newton 267, 334 

Hedges «•. Clarke 231 

Hedley i>. Bates 257, 468 

Heinrich, The 18 

v^ Sutton 16, 548 

Hele r. Lord Bexley 347 

i;. Ogle 316 

Hellier v. Ellis 384 

Heming, Se 55 

V. Leifohild 568 

Hemming, Sx parte ,.12, 13, 14, 191 

ii. Wilton, 8 

Henderson v. Atkins 538 

V. Bipley 393 

V. Aikin 478 

'. Bohmann 467 

Henniker v. Chafy 41, 42 

Henshaw, Se 52 

V. Angell 606 

Hereford, &c.. Railway Co., Se. . 41 
Heritage, Se, Ux parteDcxikei 5, 10, 13 
Herring v. Clark 65 

V. Clobery 517 

Hertford (Marquis of), JSe 460 

Heslop V. Metcalfe 9, 17 

Hetherington v. Longrigg 396 

Heugh V. Chamberlain 360 

». Garrett 391, 392 

Hewetson v. Todhunter 346, 347 

Hewitt, Se 71, 89 

Hextall V. Cheadle 493 

Hey, Se 76 

Heymann, Se , 436 

Hick V. Lookwood 469 

Hicks V. Hicks 472 

Higginbottom v. Aynsley 374 

Higgins, Se 108 

V. Woolcott 8 

Higginson v. Hall 387 

Higgs V. Dorkis 182 

V. Sohrader 16 

Highton V. Treheme , 516 

Hildick, Se 281 

Hill, Se 81, 108 

v. Bonner 347 

r. Campbell 383 

V. Hart-Davis 437, 468, 553 

V. King , 494 

V. Metropolitan Asylums 

Board 549 

Hillary, Se 52 

HiUman v. Mayhew 264, 265, 363, 463 

464 

Hilton V. Hilton 604 

Hincks, Se 189 

Hind V. WMtmore 542 

Hindle v. Taylor 402 

Hinton, Se 6 

Hirst V. Procter < 434 

Hitch V. WeUs 327 



TABLE OF CASES. 



PAOE 

Hitehia v. Hughes 537 

Hitduns v. Tate 4 

Hoar V. Loe 3S3 

Hoare, He (i GifB. 254) 68 

• (IIW. E. 181) 96 

ti. Wilson 390, 391 

Hobbs V. Eeid 346 

Hobhouse v. Courtney 317 

Hobson, Me 30 

V. Jones 398 

V. Monk 309, 330 

V. Monks 363 

Hoby ». Hitchcock 641 

Hooh V. Boor 265, 268 

'Kod^e, Hx parte 43 

Hodges, lie (4 De G. M. & G. 

491) 58 

■ (6 W. E. 487) 69 

(3 K. & J. 213; 3 Jur. 

N. S. 860 66 

V. Hodges 120, 478 

Hodgson, iJe(18 Jut. 786; 2 Eq. 

E. 1083) ..56, 58, 59 

(W. N. 1884, 117).. 640 

(11 Ch. D. 888) 67, 89 

Hodgson's Will, He (22 L. J., Ch. 

1055) 60 

Hodson, Se 79 

V. Moohi 355, 364 

Hoffman v. Duncan 469 

Hoffmann v. PostiU 392 

Holbrook, Se 85, 91 

Holbrooke v. Cracraft 374 

Holden, Se 39 

c. Silkstone Co 466 

Holland, Se 7, 67, 73 

i-. Prior 334 

V, Gwynne 6 

V. Worley 543 

Hollick, Ux parte 30 

Hollier v. Burne 34 

Holloway v. Cheston 266, 485 

V. York 363, 463, 464 

Holmes, Se 201 

i>. Harvey 464, 465 

V. Magrath 5 

V. Eeg 201 

Holroyde, Se 8 

«>. Gamett 189 

Holt, Se 98, 455 

Holywell (Eector of), ^2;^«rfe 40, 41 
Holywell - cum - Needmgworth 

(Eector of), Hx parte 29 

Home Assurance Association, Se 642 

Counties Life Assurance 

Co., Se 493 

Honduras Ely. Co. *. Tucker 334, 336 

Honywood v. Hopywood 148 

Hood V. Cooper 380 

Hook, JJ« 13 

Hoole V. Eamshaw 309 

■„. Eoberts 462 

Hooper, ^x parte 43, 44 

Se (14 Ch. D. 1) 253 

iJc (29 Bear. 657) 103 

Se (9 Jur. N. S. 670) . . 506 

V. Campbell 427 

f. Gumm 383,390 

V. Smith 516 



PAGE 

Hooper v. Strutton 64 

Hooson, Ex parte 189 

Hope, Se 189, 455 

V. Carnegie (1 Eq. 126) .... 317 

V. (4 Ch. 264).... 266 

«!. Hope 317,372 

«'. LiddeU 388 

V. ThreUall 440 

Hopewell r. Barnes 469 

Hopkins, Se 280, 361 

Hopkinson !>. Lord Burghley .... 389 

Hopton V. Eobertson 330 

Hordem, Ex parte 43 

Here V. Smith 41 

Here's Estate, Se 41 

HorEeld Trust (Trustees of), Ex 

parte 31 

Horlook V. Smith 13 

Hornby i>. Holmes 317 

Homer, Se 28 

Horton v. Bott 385 

Horwood, Se 30 

Hoskin, Se 65, 266 

Hoskins, Se 84 

V. Campbell 466 

Hotham (Lord), J?e 103 

Hough V. Ed-wards 457 

V. "Windus 453 

Hounston v. Sligo (Marquis of) . . 384 

Ho-w, Se 31, 68 

Ho-ward, Se (6 De G. & Sm. 

435) 65 

(3 W. E. 605) 76 

■ V. Eobinson 384 

Ho-well V. Dawson 609 

V. Keightley 506 

V. Metropolitan Ely. Co. . 456 

458 

V. West 334 

Howes V. MoKeman 383 

Howkias, Se 101 

v. Bennett 317 

Hubbard JBe (15 Beav. 251) 13 

. (23Beav.481) 668 

V. Hubbard 78 

». Latham 499 

Huddersfield (Corporation of) v. 

Jacomb 180 

Hudson V. Carmichael 505 

i). Osgerby 543 

Hue, Se 65 

Huggons V. Tweed 355, 386 

Hughes, iJ« 82,117 

V. Jones 380, 417 

-0. Murray 13 

Hulkes V. Day 461 

Hull and County Bank, Se 513 

and Hornsea Ely Co., Se . . 179 

Himiber Ironworks Go., Se 548 

Hume 11. Eichardson 105 

Humphreys v. Edwards .... 463, 464 

Humphry, Se 80 

Hungerford's Trusts, Se 31 

Hungerford, JJe 31,42,44 

Himnings v. Williamson 382 

Hunt V. Austin 17, 317 

41. Chambers, iile Martin ..411, 

412, 610 

V* Elmes 383 



TABLE OP OASES. 



PAGE 

Hunter v. Hunter 510 

V. Myatt 376 

V. Wortley 24 

V. Young 102, 343, 499 

Huntley v. Clutterbuok 85 

Hurry v. Hurry 183 

Hurst, Re 76 

V. Hurst 317 

Husband, Ee 436 

Hussey v. Home-Payne 512 

HutcMas & Eomer, Ex parte .... 517 
Hutchinson, Se (1 Dr. & Sm. 27) . 58 
(32 "W. E. 392; 

W.N. (1884), 35). 494 

(W. N. (1867) 49) 566 

V. East Lancashire 

Ely. Co , 36 

». Glover 382, 389 

V. Hartmont . . 189, 466 

V. Manchester Bury 

and Bosendale 

Ely. Co 36 

J). Massarene 469 

V. S-wift 541 

V. Ward, Se Smith.. 406 

Hutchison v. Colorado Oo 348 

Hutley, Ee 463 

Hutton V. Mansell 475 

Hyatt, Ee 74 

Hyde, Ex parte 39 

V. Benbow 83 

©.Large 317 

V. Warden 258, 468, 472 

Hyett V. Mekin 182 

Hyman v. Helm 257 



Ilderton, Ee 5, 6 

lUman, Ee 30 

Imperial Land Co. of Marseilles, 

Re , 423 

Imperial Land Co. of Marseilles i\ 

Masterman 423 

Inderwick, Ee 7 

Indian Mining Co., Re 516, 517 

IngUby 1). Shafto 383, 384 

Ingle, Re 7 

V. McCutohan 4 

Inglis 1!. Mansfield 266 

Ingram, Re 3'69 

V. Little 382 

Inman v. Whitley 388 

Insole, Re 56 

Irby, Re 54, 65 

Ireland (Land Credit Co. of). Re . 102 

V. Lord Eermoy . . 450 

Irlam v. Irlam 406, 407 

Isaacs, Ex parte 617 

«'. Diamond 319 

Isis, The 356 

Isle of Wight Ferry Co., Ee .... 178 



PAQE 

Issauchaud, Ex parte 37 

Ivory, Ee 252, 517 

— V. Cmikshank 328,463 



J ». J 371 

Jabloohkoff Oo. v. MoMurdo, 349, 350 

Jackson v. Litchfield 324, 448 

V. Lomas 183 

V. Mawby 188 

V. N. E. Eailway Oo. . . 351 

V. Shanks 317 

V. Slaney, Ee Clinton . . 85 

V. Smith 17, 18 

V. Tumley 372 

v.Tjas 369 

Jacob, Re (9 W. E. 474) 103 

(29 Beav. 402) 103 

Jacobs V. Brett 477 

V. Brown 348 

V. G. W. EaUway Co 387 

Jacques, Re 514, 516 

=- V. Harrison 113, 377 

Jaoquot V. Boura 309 

James, Re (4 De G. & S. 183) .... 8 

^ (W. N. (1884) 172) . . 154 

D. Aston 345 

V. Barraiid 192 

V. Crow 417 

V, Dore 341 

V. G-wynne 400 

Jaquet v. Jaquet 485, 506 

Jarmain v. Ohatterton 266, 510 

Jarman, Ex parte 6, 9 

Jarvis's Charity, Ee 51, 79 

Jefferson ». Warrington 5 

Jefferys r. Smith 380 

Jeffreys v. Evans 4 

Jeffryes v. Drysdale 65, 85 

Jenkins, Ee (3 N. E. 408) .... 54, 55 

(10 Jur. N. S. 332) . . 56 

■ — V. Bryant 315, 504 

V. Davies 396 

r. Eereday 189 

Jenkyns v. Bushby 383 

Jenner v. Morris 15, 438 

Jennings v. Johnson 20, 22 

V. Jordan 115 

V. Eigby 104 

Jephson, Re 56, 58 

Jervis v. Berridge 362 

Jesse V. Beimett 3-35 

Jessop, Ee 10 

Jesus OoUege, Ex parte 486 

Jewitt, Ee (34 Beav/ 22) ... , 9 

--_ — (33 Beav. 559) 188 

Jiminez v. Owen 564 

Joad V. Eipley 486 

Job V. Job 260, 397 

Johns V. James 385 

Johnson, Ex parte 434 

Ee (8 Eq. 348) 29 

& Tustiu, Ec 109 

(W.N. (1884) 

200 110 



TABLE OF OASES. 



PAGE 

Johnson, He (3 N. E. 655) 341 

■ V. Burgess 178 

V. Diamond 456 

V. Mofiatt 464 

Johnson's Patent, Re 252 

Johnston V. Brown 402 

Johnstone v. Cox 266, 512 

■ V. Royal Courts Co. ^ . . , 267 

Joint Stock Discount Co., J?« 391 

f. Brown 346 

3o0iSf>, Ex parte 43,44 

Bo 40, 41 

V. Hector 399 

Jones, Ex parte 42 

-Be (2 Ch. D. 70) 88 

(9 Eq. 63) 5 

(13Eq. 336) q 

(39 L. J. Ch. 190 ; 18 

W. E. 312; W. N. 

(1870), 7) 29,40, 42 

(24 Ch. D. 583 ; 26 Ch. 

D. 736) 141, 153 

(8 Beav. 479^ 8, 10 

(3 Drew. 679) 54, 55 

(6 W. R. 276) 345 

(2 De a. E. & J. 554) . . 88 

(4 Jut. N. S. 581, 887 ; 

6 W. E. 614, 672), 38, 39 

(8 W. E. 66) 506 

, Eyre v. Cox 315, 538 

V. Anon 439 

V. Batten „ 478 

P.Brandon 317 

V. Cargill 317 

v. Elderton 348 

V. FouLkes 345 

V. Frost 16, 18 

V. Jones (W. N. (1884) 17) 394 

(14 Ch. D. 593) . . 413 

(Kay, App. 6) . . 384 

V. Lewis 41 

V. London Eoad Car Co. . . 384 

V. Monte Video Gajs Co. . . 387 

V. Eoberta 8 

. V. Thompson 456 

V. Wedgewood 413 

r. Williams 460 

Jopp's Case 618 

Joselyne, Ex parte 280 

Joseph V. Goode 400, 499 

Joseph's Will, He 63 

Joy V. Hadley 393, 456 

Joyce, Ee 64, 80 

Jubb V. Bibbs 394 

Judd V. Green 617 

JndHn, Ee 121 

Judkins, Ee. 406 

Justice V. Mersey Steel Co 611 



Kanitz v. Scarborough , 617 

Kathleen Mavoumeen, .Be 516 



PAGE 

Kay V. Hargreaves 392 

Kaje, Ee 98 

Keane, Ee, Lumley v. Desborough 

16, 18 

Kearsley v. Philips 388 

Keate v. PhilHps 306 

Keeler, Ee 64, 70 

Keene v. "Ward 5 

Keith i\ Butcher 337, 378 

KeUand v. Fulford 28 

Kellock's Case' 280 

Kelly w.Byles 514,649 

t'. Hutton 517 

Kemp, Ee 149 

z\ Waddingham 104 

Kemptner, Ee 52 

Kenah, Ee 435 

Kendall v. Hamilton 260 

Kendrick v. Eoberts 364 

Kennaway v. Tripp 541 

Kennedy v. Edwards 642 

V. Lewis 378 

Kenny v. HoUings 310 

Kenrick v. Wood 558 

Kensington (Lord) v. Bouverie . . 397 
Kensington Station Act, Ee .... 60 

Kent, Ex parte 461 

Ker, Ee 9 

Kernick v. Kemiok 437 

Kerr v. Gillespie 541 

Kettlewell v. Barstow 391, 566 

Key V. Key 405 

Kidd V. Cheyne 610 

Kidderminster (Vicar of), Ex parte 43 
Kidstone v. Empire Insurance 

Co 551 

Kilkenny Ey. v. Feilden 641 

Kincaid, Ee , 67 

King, Ee (16 Eq. 521) 34 

(16 Jur. 1153 ; 5 De G. 

& S. 644) 64 

V. Bryant 188 

V. Corke 377 

V. Davenport 374 

V. Hawkesworth 275 

V. King 54, 55, 88 

V. Sandeman 418 

V, Savery 554, 658 

W.Smith ■. 88 

King's College, Ex parte 43 

Kington Ry., JJe 173 

Kinlooh v. Reg., Ee Banda & Kir- 
wee Booty 20 

Kinnaird v. Kinnaird 322 

Kinneir, Ee 12 

Kino V. Rudkin 337, 418 

Kinsey, Ee 41 

Kinshela v. Lee 397 

Kirk ». The Queen 201 

V. Todd 350 

Kirksmeaton (Rector of), Ex parte -28, 

31 

Kirkwood v. Webster 549, 559 

Kitching o. Kitching 354 

Kitton, Ee '. 6 

Knapping v. Tomlinson 30 

Knatohbull, Ee 144, 147 

V. Fowle 340, 422 

Knieiim v. Schmauss 500 



TABLE 01* CASES. 



FAQS 

Eniglit, Ee, Knight v. Gardiner. . 265, 

45.5 

Knight V. Grardner . . 441 

(27 Beav. 45) 55 

(37 li. J. Ch. 409) . . 56 

(Sarah), He .... 88, 117, 266, 

639, 540 

V. Cory 541 

V. Knight (16 Beav. 358) . 470 

(14 L. T. 161 ; 

W. N. (1866), 

114) 91 

V. Lord Plymouth 472 

Knott, Re 280 

V. Cottee 475 

Knowles, Ze 103, 141 

Krehl v. Burrell 266, 515 



Ladd V. Fuleston 465 

Laffitte Charles, & Co., Be 648 

Lafone v. Falkland Islands Co. . . 383 
La Grange v. MoAndrew . . 260, 374, 

542 

Lainson v. Lalnson 504 

Laird v. Briggs 378 

Lake v. Eastern Counties E.ly. . 46, 46 

Megentio, The 542 

Lamh, iJ« 81 

V. Munster 385 

V. Orton 605 

Lambert v. Turner 327 

Lambeth (Keotor of), .Bs^fWte .. 34 

Lambie v. Lambie 227 

Laming v. Gee 398, 514 

Lamotte, Se 65, 89 

Lancashire v. Lancashire 478 

and Yorkshire Kly ., Se 28 

Lancaster, Ee 59 

• Charities, Ee 79 

». Lancaster 430 

Lauoefield v. Iggulden 600 

Land Credit Society, Ee 383 

Landfield, Ee, Landfield v. Land- 
field 120 

Landon, Ee 56 

Landore Co., Ee 465 

Lane, Ee (24 L. T., 0. S. 181) . . 54 

; (12W. R. 710) 76 

'■ — V. Debenham 406 

V. Glenny , 4 

V. Gray 387 

V. Hardwioke 327 

V. Sterne 469 

Langdale ii!e 103 

(Lady) v. Briggs 372 

Langen v. Tate 423 

Langford, Be 369 

Langham v. G. N. Ely 47 

Langhom v. Langhom 66 

Langley, Ex parte 468 

« V, Sugden 544 



FAQB 

Langmead v. Cookerton 181 

Langridge v. Campbell 367 

Langton v. Waite 386 

Lankester v. Wood 466 

Lapworth, Be 29 

L^rgau V. Bowen 469 

Larken, Be 102 

Lashley v. Hogg 499 

Latch V. Latch 343 

Latham v. Hyde 8 

Lathropp's Charity, Be 40, 41 

Latta, Ee 542 

Laughame Ely., Ee 50 

Lauretta, The 512 

Lautour v. Holcombe 543 

La-w, Ee (4 Beav. 509) 85 

(21 Beav. 481) 6 

(30 L. J., Ch. 512 ; 7 

Jur., N. S. 410) 57 

Lawrance v. Galsworthy 64 

Lawrence, Be 59, 616 

V. Campbell 382 

Lawrenson v. Dublin Kly. Co. . . 319 

Lawson, Ex parte 39 

V. Stoddart 484 

V. Vacuum Brake Co. . . 423 

Lazarus, Be 55, 59 

V. Mozley 387, 389 

Lazenby f. White 613 

Lea, Be 71 

Conservancy Board ». Button 649 

Leadbitter, Be 5, 11 

Leader, The 18, 467 

Leake, Be 55 

Leathley v. McAndrew 310, 336 

Leohmere and Lloyd, Be 108 

• • V. Clamp 68, 77 

Leconfield (Lord), Ex parte 28 

Lee and Hemingway, Ee 39 

Be 539 

V. Angas 429 

1!. NuttaU 253,280 

V. Eyder 326 

V. Shaw 397 

V. Sturrook 344 

Leeds Banking Company, Be 449 

W.Lewis 484,485,492 

Leeming, Be 468 

V. Murray 340 

Lees, Be 8, 10, 13- 

D. Coulton 78,183 

V. Lees 436, 474 

V. Patterson 356 

Leese v: Knight 326 

Legg V. MackreU 79, 88 

Leggott i>. Western 268, 460 

Leicester, Ex parte 439 

Leigh, Be (6 Ch. 887) 29, 39, 43 

(9 Ch. 684) 42 

EowoUffe V. Leigh .... 392 

V. Brooks 268 

V. Turner ,,..., 506 

Lemann, Be 80 

Lenders v. Anderson 320 

Leslie, Be 29, 103 

V. Clifford 332 

Lester v. Alexander 183 

V. Lazarus 4 

Lett, Be 6, 12, 558 



TABLE OP CASES. 



PAGE 

Lett V. Parry 392 

Levett, Se 58 

Levinger v. Crombie ■. . , . 462 

Levitt V. Levitt 435 

Lewes, Jle 88 

(Earl of) V. Bamett 188 

Lewin, £e 5, 98, 341 

Lewis, He, Ex parte Munro 20 

V. Armstrong 479 

V. HUlman 57, 58 

V. Kobbs 338 

V. Primrose 5 

V. South Wales Ely. Co. . 28 

Ley ». Ley 468 

Liberia (Republic of) i\ Roye . . 385, 

392 

Liddell, Me 120 

». Norton 389 

Liddiard, Re 81 

Lietch and Kewney, Se 45 

Lightbody's Trusts, Re 84, 117 

Lightowler v. Lightowler 32 1 

Lilley, Re , 43 

Lillwall, Re 120 

Lincola Chapel, Re 86 

(Kajar ai), Ex parte ..29,43 

Lind V. Isle of "Wight Ferry Co. . 383 
Lindsay V. Gladstone 391 

■!>. Tyrrell 341 

Lingren v. Lingren 327 

Lister v. Tidd 461 

Lister's Hospital, Re 30, 31 

Litchfield v. Jones 386, 392, 479 

Lithgow, Ex parte 449 

Little, Re , 84 

Little's case 510 

Liverpool (Rector of), Ex parte .. 31 

Bocks, Re 28 

Improvement Act, Re, 45, 88 

Rly. Co., Re 40 

Llanover v. Homfray, Phillips v. 

Llanover 265, 430, 559 

Llewellyn, Re 491 

Lloyd, Re 54, 58, 469 

V. Attwood 347 

V. Cocker 402 

V. Dimmack 334, 351 

V. Jones 18, 464 

i\ Lloyd 332 

V. WHtty 427 

Lloyd's Banking Co. v. Ogle .... 331 

Lockett V. Carey 388 

V. Lockett 392 

Lockey, Re 472 

LocklMrt V. Hardy 5 

Lockwood, Ex parte 28, 33 

Lodge V. Pritchard 398 

Logan V. Baines 397 

Lomax, Re 40 

London (Bishop of). Ex parte (2 Do 

G-., P. & J. 14) 39, 40, 42 

London, Birmingham, and Bucks 

Rly. Co., Re 494 

London, Birmingham, and Bucks 

Rly. Act, Re 558 

London and Birmingham Rly. 

Co., JJe 649, 560 

London and Blaokwall Rly. v. 

Limehouse Board of Works, 479, 546 



FAOE 

London, Brighton, and S. C. Rly., 

Re 28 

London and Brighton Rly. Co. i>. 

Shropshu-e Rly. Co 39 

London and Brighton Rly. Co., 

Re 40, 41, 43 

London and County Banking Co. 

V. Dover 474 

London (Corporation of). Ex parte 28, 

39 
London, Chatham, and Dover 

Rly., Ex parte (W. N.(1868), 75) 48 
London, Chatham, and Dover 

Rly, Ex parte (8 W. R. 636) . .48, 50 
London, Chatham, and Dover 

Rly. J). Imperial Credit Asso- 
ciation 513 

London and County Assurance 

Co., Re 492, 493 

London Financial Association v. 

Wrexham Rly. Co 171 

London Flour Co., Re 188 

London Land Co. v. Harris 464 

London (Mayor of). Ex parte .... 31, 
272, 303, 305, 486 
London and North Western Rly. 

Act, Re 29 

London and North Western Rly., 

Re 47 

London and North Western Rly. 

V. Corporation of Lancaster . . 28 
London Scottish Society©. Chorley 540 

L. & S. W. Rly. Act, ii« 40 

Go., Ex parte .. 42 

■ ■ V. (jomm 550 

li.T.&^.niy. Co., Ex parte.... 47 
Long, He (10 Jur., N. S. 417) . . 38 

(IW. R. 226) 40,43 

(17W. R. 218) 81 

V. Croasley 333, 337, 377 

V. Storie 345, 346 

V. Tottenham 541 

Longdendale Spinning Co., Re . , 253 

Longman ti. East 268 

Longstaflf, Re 437 

Longuet v. Hockley 56 

Longworth, Re 44 

Lonsdale (Earl of) v. Church .... 472 

Loog V. Bean 468 

Lord, Re 427 

». Colviu 518 

V. Lord 399 

V. Wormleighton 17 

Lorenz, Re 103 

Lorimer, Re 55 

Loughborough, Re 6, 13 

Loughton (Rector of). Ex parte., 41 

Loveband, Re 43 

LoveU V. WaUis 422 

Lowe V. Lowe 515 

Lowry, Re 40, 45, 78 

Lows, Ex parte 417 

Lucas V. Peacock 461 

V. Rudd 369 

V. Siggers 464 

Lucy V.Wood 456 

Ludgator i>. Channel! 472 

Luke V. Tonkin, Re Symons .... 397 
Lumb V. Beaumont 467 



xlii 



TABLE OF CASES. 



FAQE 

Lumb V. Osbum 433 

— V. WHteley 406 

Lumleyv.Desborougli, if«Keane 16,18 

Lush, JJe ..65, 68 

Lyall V. Weldben 464 

Lydall v. Martinson 418 

Lyddon v. Moss -4 

Lydney Co. v. Bird 642 

Lye, Re ....40, 41 

Lyell». Kennedy.. 382, 384, 385, 386 

Lyie V. Ell-wood 435 

Lymington Cbapel, Se 28 

Lyon V. TweddeU 385 

Lys V. Lys 180 

Lysaght v. Edwards 68, 78 

Lytton, Me 28 



M. 



MaoAllister v. Rochester (Bishop 

of) 350, 382, 387 

M 'Alpine v. Moore, Re Moore . .64, 81 

M'Andre-w v. Barker 515, 616 

Macann v. Borrodaile , , . . 338 

Maoaulay, Re 29 

M'Arthur v. Dudgeon 399 

M'Carthy v. Gould 454 

Macclesfield Canal Act, Re 31 

M'Corquodale v. BeU .". . . 382 

Macdonald, Me 41 

■ V. Ajatelme 328, 422 

V. Carington .... 354, 355 

V. Eoster 406 

V. Taoquah Co 466 

Macfarlan v. Holt 382 

Macfarlane, Re 57 

M'Gachen v. Dew 334 

M'Gowan v. Middleton 356 

M'Gregor v. Keily 4 

M'Henry v. Lewis 257 

M'llroy V. Duncan 385 

M'Intosh V. G. W. Ry. Co. (4 De 

G., M. &G. 644).. 388, 429 

(13 W. E. 

1029).. 518 

(3 Sm. & G. 

146) 494 

Mack V. Ward 456 

M'Kay, JJe 7 

Mackenzie, Me 144 

V. Mackenzie (5 De G. 

& Sm. 338) .... 74, 433 

(Seton, 

525) 85 

Mackintosh, Re 103, 188 

Maokerethv. Glasgow Ey. Co. .. 319 

Mackley v. CMUiagworth 549 

Mackreth ti. Nicholson 316 

M'Lachlan v. Lord 440 

Maclean's Trusts, Me 65 

Maclean v. Dawson 346 

M'Leod V. Buchanan 462 

M'Murray v. Spioer , 68 

M'Phail, Ex parte 321 

M'Eae, Re 343 



PAGE 

Macrae v. Smith *66 

M'Veagh, Me 103, 387 

Maddeford v. Austwiok 4 

Maddy v. Hale 3* 

Madgwiok, Re 486 

Madras Irrigation Co., Re. . . .465, 514 

Magdalen College, Re 30 

Magnay v. Davidson 346 

Maidstone Ry., Ex parte 31, 486 

Mainwaring, Re 66, 82 

Mais, Me 80 

Maggi, Me, Winehouse v. Wine- 
house 280,281 

Maioohn v. O'OaUaghan 472 

Malet, Me 58 

Malins v. Price 549 

Manby v. Bewicke (1) (8 De G. M. 

& G. 468) 541 

(2) (8 De G. M. 

&G. 470).. 387 

(3) (8 De G. M. 

&G. 476).. 388 

(27 L. T. 0. S. 

55).. 387 
Manchester Building Society, Me 610, 

576 

Burial Board, Ex parte 4 1 

(Dean & Canons of), 

Ex parte 43 

& Milford Ey., Me . . 50, 

169, 173 

&o. Ry. V. Brooks .... 355 

& Southport Ry. Co., 

Me 28, 45 

Ry., Me 468 

Mandeno v. Mandeno 474 

Mander, Me 5 

Manisty v. Kenealy 354 

Mann v. Perry 455 

Manners v. Eurze 472 

Manning, Me 66 

V. Glyn 4 

Mansel, Me 152, 513, 616 

ManseU, Ex parte 472 

V. Feeney 388, 391, 392 

Mansergh :;. Rimell 309, 330 

Mansfield v. Childerhouse 385 

Mant V. Smith 4 

Mapleson v. Masini 542 

March, Me 193 

Marfell v. Rudge 475 

Markham, Me 510 

Marks' Trust, Me 40 

Marlborough (Duke of), Me .... 33 

Marman, Re 339 

Mamer, Re 42, 66, 69 

Marriage, Me 36 

Marriott, Me 81, 361 

V. Ajichor, &o. Co 382 

Marris v. Ingram .... 188, 189, 272 

Marrow, Me 88 

Marsh ». Att. -Gen 103 

V. Keith 372, 383 

Marshall, Ex parte (1 Ph. 560). .38, 39 

(3 De G. & Sm. 679) 84 

■ Re 499 

V. Berridge , 512 

Martano v. Mann 542 

Martin, Me, Dier v. Martin 506 



TABLE OB" OASES. 



xliii 



PAGE 

Mai-tin, He, Hunt v. Chambers . . 411, 
412, 510 

(22 L. J. Ch. 248) . . 477 

V. JBaimister 275 

V. Earl Beauohamp .... 374 

V. Frost 378 

V. Gale 396 

V. Hadlow , 474 

V. L. C. & D. Ry. Co. 48 

V. Whitmore 341 

Martinez, Se 79 

Martyn, Se 81 

Matylebone Improvement Act, Se 28, 

38, 39 
Maryport & Carlisle Ey. Co., Se 39 

Mash, Se 12, 13, 15 

Mason, Se 29, 41, 56, 65, 66, 337, 383 

V. FranHin 336 

V. Bogg 280 

V. Brentrni 540 

Maaselin, Se 58 

Massey, Se , 10 

V. AJlen 542 

and Carey, Se 8 

Massie ». Drake 13 

Masters v. Barnes 334 

Mather v. Skehnerdine 342 

Mathias v. Tetts 334 

Matthew v. Northern Assnr. Co. 32 

Matthews v. Antrobus 373 

Se (26 Beav. 463 ; 5 Jur. 

N. S. 184) 79 

(2 "W. E. 85) 64, 84 

— : V. Pa.lmer 466 

Mavor v. Dry 379, 556 

Maj, JEx parte 281 

Se 15 

V. Biggenden 9 

V. Dowse 486 

V. Frinsep 433 

V. Thompson 266 

Maybery v. Brooking 344 

Mayer v. Murray 397 

Mayes v. Mayes 440 

V. Spence 428 

Maynard, Se 84 

Mayne v. Butter 435 

Meacham v. Cooper 399, 427 

Mead v. Lord Orrery 472 

Meaden v. Sealey 469 

Meek v. Michaelsen 317 

V. Ward 436 

Meinertzhagen v. Davis 397 

Melhuish t: Milton 467 

Melling v. Bird 30, 42, 43 

MeUor, Sc 196 

21. Porter , 78 

V: Sidebottom 396 

V. Swire 343 

Mel ward, ^:i;^arfe 29 

Mem 6, 380, 440, 463, 478, 512, 

615, 559 

Mendelssohn v. Hoppe 544 

Mendes v. Giiedalla 336, 347 

Mennard v. Welford 80 . 

Mercer v. Lawrence 451 

Mercers' Co., Ex parte ....38, 39, 539 

: V. Great Northern 

Ey 438 



]?AaE 

Merchant Tailors' Co., Se 41 

Merry v. Niokalls 518 

Merryweather, Se 53 

Mersey Steamship Co. !). Shuttle - 

worth 396 

Steel Co. v. Naylor 280 

Mertens v. Haigh 388, 390 

-Merton College, Re 39 

MetcaUe, Se (2 De G. J. & S. 122) 55 

{3 N. E. 657) 55 

(13 0h. D. 236) .... 499 

(30 Beav. 406) .... 8 

MetcaHe's Case 189 

Metropolitan Asylum District v. 

•Hill 266 

Board of Works v. 

New River Co. .. 401 

Inner Circle Ey. v. 

Metropolitan Ey. . 463 

Ey., Ex parte .... 42 

and Cosh, Se .. 108 

Co. and Maire, 

Se 43 

Mette, Se 34 

Metzler v. Wood 418 

Mexico (Bank of) v. Hart 423 

Meymott v. Meymott 557 

Meyrick, Se 71 

V. James 441 

V. Lang 481 

Michel, Se 103 

Michell, Se 516 

Mickelthwaite v. Fletcher 188 

Middle Level Draiaage and Navi- 
gation Commissioners, Se .... 42 
Middleton v. Chichester .... 188, 189 
Midland Counties Ry. v. Caldecott 45 

V. Westoomb 45 

Ry. JJe 42 

Co. w. Oswin 28 

Waggon Co. v. The Pot- 
teries, &c. Co -. 168 

Milan Co., Se 280 

Mildmay v. Methuen (Lord) .... 494 

V. Quicke 182, 183, 462, 548 

Mildred v. Austin 178 

MUes V. Jarvis 180, 347, 474 

Millard v. Baddeley 331 

V. Burroughes 552 

MiUar, Se 68 

Miller, Se 653 

V. Hales 541, 543 

V. Huddlestone 352, 454 

V. Marriott 183 

V. Miller 402, 454 

V. Mynn 456 

MiUington v. Fox 639 

Mills, i2e 491 

V. Griffiths 337 

V. Jennings 335 

MiUtown (Lord) v. Stuart 440 

Mihie, Se 30 

Milnes, Se 28, 41 

Milton, Se 266 

Minchin, Se 71, 86 

Minet v. Morgan 382, 387 

Mirehouse v. Bamett 411 

Mitchell, -Be 485 

V. Bailey 336 



xliv 



TABLE OF CASES. 



PAGE 

Mitchell t>. Cobb 56 

1). Condy 511 

». Barley Co 266 

V. Lee 456 

Moate, Me 68, 487 

Mobbs, Ex parte 5 

Mockett, So 103 

MoUoy r. Kilby 382 

Molynenx, Be 78 

Money, Se (13 Beav. 109) .... 59, 341 

(2 Dr. & Sm. 94) ... . 34 

Moneypenny v. ■ 378 

Monoban, Se S3 

Montefiore v. Guedalla 369 

Montefiori v. Browne 600 

MonteUano, (Duke de) v. Cbristin 642 

V. MuUigan 193 

Monypenny r. Monypenny 518 

Moone ff. Rose 189 

Moor V. Anglo-Italian Bank .... 280 
Moore, He, M 'Alpine v. Moore. . 64, 81 

V. Cantley 326 

V. Morris 345 

V. Platel 326 

V. Smith 563 

V. Walter 380 

Morant, He 60 

Moravian Society, He 80 

Mordannt v. Benwell 182 

Morecroft v. Evans 516, 517 

Morey v. Vandenburg 440 

Morgan, He (24 Ch. D. 114) .... 163 

(2'W. K. 439) ....57,59 

. (Seton, 516) 91 

. V. EMord 518 

V. G-reatrex 470 

V. Higgins 4, 398 

V. Morgan 545 

V. Kuddook 4 

V. Swansea Sanitary 

Authority l07 

Morgan Jones, Me 40 

Morley v. Clavering 445 

V. Morley 428 

Momington v. Momingtou 383 

Morres v. Hodges 34 

Morrice v. Aylmer 64 

Morris, iie (27 L. T. 554) 10 

(20Eq. 470) 32,42 

V. Erancis 18 

V. LlaneUy Ey. Co 494 

V. Morris 430 

Morrison v. Arnold 430 

V. Morrison 188 

Morse, Be 58 

Mortimer, Be 558 

v. Mortimer 346 

V. Picton 369 

Mortimore v. Cragg 449 

V. Mortimore 403 

Morton v. Miller 357 

Moscow (City of) Gas Co. v. Inter- 
national Knanoe Co 542 

Mosely, Be 9 

Mosley, Bi 54 

Moss, Be 4, 7, 10 

V. Bradburn 411 

Mostyn v. West Mostyn Co 255, 

264, 355 



PAOB 

Mounsey v. Burnham 379, 556 

1 1,. Lonsdale (Earl of) .. 478 

Mount, Be ^1 

Mountain v. Toung 64 

Moxham, M., The 42o 

Mozley v. Cowie 418 

Muggeridge, Be 102, 103 

Muloaster, Be. 393 

Mullows V. Bannister 317 

Mundel, Be 64, 66, 70 

Munns, Be *85 

Munro, Sx parte. Be Lewis .... 20 
Munroe v. Wivenhoe, &o. Ky. Co. 439 

Munster v. Kailton 324, 448 

Munton, Be f ^ 

Murphy v. Nolan 548, 552 

V. Vincent 08 

Murray, Be 103, 281 

. '■ V. Barlee 5 

V. Simpson 456 

V. Walter 388 

MurreU v. Clapham 338 

Murrow v. Wilson 5 

MuBgrave, Be 31 

V. Sandeman 120 

11. Stevens 353 

Mutlow, iS« 47, 48 

V. Mutlow 55 

Mutual Society, Be 387 

V. Langley 462 



N. 

Nadin, Bx parte 34 

». Bassett 423 

Naersnoss Shipping v. Royal Mail 

Co 516 

Nagle-Giilman v. Christopher . . 412 

Nalder «. Hawkins 338 

Nalty v. Aylett 189 

Napton (Overseers oi), Be 5 

Nash, JJe 42,67, 81, 88 

V. Coombs 29 

V. Dickenson 449 

V. Nash 31 

Nason v. Clamp 428 

National Provincial Bank v. Evans 358 

376 

V. Harle 269 

National, &o.. Association (Official 

Manager) v. Carstairs 427 

Fimds Assurance Co., Be 388 

465, 513, 614 

Navan Railway, Be 47 

Naylor, Be 59 

V. Farrer 364 

Neate, Be (10 Beav. 181) .... 10, 13 
(10 Beav. 57) 13 

V. Pink 469 

Neath & Brecon Rly., Be 38, 48 

Hx parte ,, 48 

(Vale of) Ely., Be 30 

Needham v. Needham 445 

V. Smith 326, 338 

Neil, Be 188 

Nelson, Exparte 280, 454 

f. Booth 397, 398 



TABLE OF CASES. 



xlv 



PAQE 

New Britisli Co. v. Peed 387 

New Callao, Me 434, 510, 516 

New "Westminster Brewery Co. v. 

Hannah 337, 422 

Newall c. Telegraph Co 382, 387 

Newbery, Se 98 

Newbiggin Gas Co. r. Armstrong 260 
306, 311 

Newbury v. Marten 78, 544 

Newby v. Harrison 373 

V. Sharpe 378 

«■. VonOppen 319 

Newcastle (Duke of), Se 142, 152, 154, 

177, 179 

Newoomen v. Coulson , . . . . 373 

Newellj'.NationalProvinoialBank 355 

Newen v. Wetten 398 

Newland v. Steer 387 

V. Steere 429 

Newman, JJ« (30 Beav. 196) 7 

(2 Ch. 707;.. 10, 12, 13 

r. SeMe 327 

TfewtOTi, £x parte '. 29, 43 

V. Boodle 13, 558 

V. Bimes 386 

r. Metropolitan Ely 28 

r. Hicketta 5, 188 

V. Sherry 102 

Nicholas r. Draoachis 467 

NichoU, JJe 41,42,74 

Nicholls, Se 43 

Nichols V. Evens 365, 367 

Nicholson, £e 6, 7, 8 

w. Squire 188 

NicoU V. Jones 382, 387 

Niooll's Estate, iJe 33 

Niemann v. Harris 438 

Nightingale v. Lawson 399 

Nixon V. Sheldon 516 

Nobel's Co. V. Jones 378 

Noble «>. Edwardes 259 

Nock ». Nock 38 

Noel V. Noel 387 

Nokes V. Gibbon 424 

r. Warton 13 

Norcop, Se 30 

Nordou V. Defries 382 

Norfolk Clergy, Governors of, iic 

parte 30 

Norfolk's Estates (Duke of), Se. . 44 
Norman, Se 542 

V. Johnson 372, 639 

Normanton Iron Co., lie 516 

Normanville v. Stanning 428 

Norris, He 80, 103 

V. Beazley 337 

North V. Huber 388, 389 

London Ely. Co., iJ« 37 

Northampton Coal Co. v. Midland 

Waggon Co 267,542 

Northern Insurance Co., Me .... 280 
North London Co. t". Jacques .... 113 

Ely. V. GreatNorth- 

emEly 468 

Northrop.iife 81 

Northumberland (Duke of) i;. Todd 438 

Northwiok, Hx parte 28 

Norton v. Compton 512, 515 

v. Gould 469 



PAOE 

Norton v. Gover 306 

V. L. & N. W. Ely. Co. . . 513 

Norway v. Norway 88 

Notice 437, 614 

Nott v. Sands 461, 456 

Nowell, Me 445, 462 

■». Whittaker 341 

Nugent, Me 115 

V. Vetzera 98 

Nurse v. Dumf ord 260, 306, 3 U 



Oakden, JJ« 88 

Oakham School, Me 43 

OakweU Collieries, Me , . 513 

O'Brien v. Lewis 4 

V. Maitland 327 

«>. Tyseen 371 

O'Donnell,' iSe 91 

Ogden V. Battams 398 

Ogle V. Brandling 412 

Ohlsen v. Terrero 426 

Oldfield V. Cobbett 341, 479 

Oldham, Me 33 

V. Stringer 116 

Olivant v. Wright 612 

OUve, Me 96, 604 

Oliver, Me 8 

O'Meara v. Stone 384 

Ommauey, JEx parte 88 

O'Nen V. Clason 318 

Ongley v. Hill 423 

Onslow, Me 469 

Ord, Me 65 

Orde, Me 81, 93, 436 

Orger v. Sparke 78 

Oriental Bank, Me 280 

Original Hartlepool Co. v. Gibb . 370 

Ormerod, Me 66, 72 

V. Todmordeu Co 268 

Ormsby, Me 472 

Orr, Ewing & Co. {>. Johnston & 

Co 549 

Orrell Colliery Co., Me 374 

Ortner v. Eitzgibbon 330 

Osbaldiston, Bx parte 43 

Osbom, Me 64, 69 

V. Osbom 183 

Osborne, Me 6, 8 

to Eowlett 108 

Otto V. Lindford 617, 318 

Outwin, Me 83, 192 

Overington v. Ward 469 

Oweu, Me 65 

V. Henshaw 16 

V. Homan 469 

V. Pritchard 455 

V. Wynn 383 

Oxford, &o. Ely., JJe 41 



xlvi 



TABLE OF CASES. 



P. 

PAQE 

Packman and Mobs, Se 108 

Paddon, iie 41 

V. Winch 382, 658 

Padgett V. Binna 396 

Padley v. Camphausen 272 

Padstow Association, He 516 

Padwick v. Scott 354, 355, 364 

Page, Se 8 

V. Ward 383 

Painter, Ex parte 88 

Palairet v. Carew 88 

Palermo, The 382 

Palmer, Ex parte 44 

Re (W. N. (1873), 101) . . 63 

V. Hoyer 404 

V. Gould's Co 319, 321 

V. Jones 338 

i>. Locke 461 

i\ Waleshy 339 

Palmerston (Lord), Ex parte 43 

Panton v. Lahertouche 542 

Papayanni v. Contpas 331 

Paradice v. Sheppard 341 

Parby, Re 78 

Pare v. Clegg 335 

Pares, Re 182, 186 

Farke Me 81 

Parker, Re (13 Eq.' 495) ".'.".'.28] '29, 40 

(2W. 11.139) 57 

(32 Beav. 580) 80, 84 

». Trigg 181 

*■. Wells 382, 385, 392 

Parkinson v. Chambers 341 

. V. Hanbury . . 341, 342, 551 

V. Lucas 400 

Parpaite v. Dickenson 309 

Parr v. Lovegrove 505 

Parrot v. Pawlet 271 

Parrott, Re 81 

Parry, Re (6 Hare, 306 ; 12 Jnr. 

721) 64 

(12Jur.615) 56 

(W. N. (1884), 43) 149, 153 

Parsons v. Burton 371 

■„. Harris ' 329, 396 

V. Grroome 462 

Partington, Re 29 

■ V. Reynolds 397 

Pascoe V. Bichards 396 

Pashler «. Vincent 188 

Pasmore, Re 5 

Patch V. Ward 384 

Patching ». Bull Ill 

Paterson v. Paterson (10 L. T. 183) 41 

(2 Eq. 31) 76, 81 

Patey v. Flint 329 

Patman v. Harland 106 

Patterson v. Wooler 422 

Pattison, Re 42, 43 

Paull, JBe 9 

Paxton i>. Bell 542 

Payne, Ex parte 512 

V. Parker 335 

Peace, Re 177 

and Waller, Be 6 

Peach, Re 7 

Peacock, Re 75 



PAOE 

Peacock v. Harper 440 

Pearce, Re 31 

V. Lindsay 559 

Peareth v. Marriott 97 

Pearse v. Pearse 382 

Pearson, Re 65 

V. Wilcox 433 

Peatfield ». Barlow 17 

Pedley's Estate, Re 31 

Peek V. Trinsmaran Iron Co 469 

Peers, Re 9 

Pegg V. Wisden 476 

Peile, Re 9 

«. Stoddart 384 

Peillow V. Brookings 369 

PeUas V. Neptune Insurance Co. . 355 

Pelling V. Groddard 58 

PeUy V. Wathen 17 

Pemberton, Ex parte 14 

W.Barnes 180, 181 

Pender, JJe (2 Ph. 69) 7 

(8 Beav. 299) 3,9 

(10 Beav. 390) '5 

Penley v. Anstruther 5 

Penn v. Bibbey 518 

Pennell v. Earl of Dysart 372 

V. Millar 380, 506 

Penney v. Goode 389 

Pennington v. Dalbiac 181 

Penny v. Penny 34 

Penrice v. WUliama 380 

Pepper, Re 318, 327, 490 

Peppitt, Re 342 

Perkins, Re 5, 6 

V. Beresford 266 

Perks, Re 37 

V. GiUott 560 

V. Mylrea 193 

Perry, Re 37, 53, 54, 57, 61 

V. Knott 334 

J). Walker 341,342 

Peru (Eepublio of) ». Weguelin. . 385, 

391, 517 

Peruvian Co. i;. Bockwoldt 257 

Petat V. Lailey 411 

Peter t). Thomas-Peter 352 

Peters v. Bacon 183 

Pett's Will, Re 103 

Peyton, Re (25 Beav. 317 ; 2 De 

G. & J. 290 ; 4 Jur. 

N.S. 370, 469), 66, 73, 74 

(7 Eq. 463) 103 

V. Harting 386 

Peyton's Settlement, Re (10 W. R. 

515) 103 

Phelps, Re 57 

V. OUve 388 

Pheysey v. Pheysey 515, 516 

Philby V. Hazle (7 Jur. N. S. 125) 7 

(8 C. B. N. S. 647) 5 

Philipps ». Philipps 356, 556 

PhiUps t!. Beale 263,- 411, 413 

PhUlipine, The -IB 

Phillpotts, JJe 12 

Phillips, Ex parte 42, 45 

Re (6Eq. 250) 34 

(W. N. (1882), 134) . 55 

(4 Ch. 629) 88 

(Cr. & Ph. 147) 65 



TABLE OF CASES. 



xlvii 



PAGE 

Phillips V. Gibbons 380 

V. Holmer 383 

V. Homfray 330, 350 

V. Llanover, Llanover r. 

Homfray 265, 430 

V. PhUIips 341, 387 

V. Prentice 436 

V. Warde 440 

Philp, Jf« 7 

Phipps V. Daubuey 4, 5 

Phoenix Steel Co., Re 280 

Phosphate Sewage Co. v. Hart- 

mont 188, 189 

Phospho Guano Co. v. Guild .... 322 
Photographic Artists' Association, 

Se 517 

Pioard v. Mitchell 41 

Picasso V. Maryport Harbour 

(Trustees of) 549 

Pick, Re 40, 43 

Pickance, Re 84 

Pickard v. G. N. Rly. Co. ■ 467 

Pickering, Re ." 391 

Pickett V. Logon 374 

Picton, Re 41 

Piercy v. Young 413 

Piersou v. Knutsford Estates Co. 18 

Piffard v. Vanrenen 466 

Kgott and S. W. Rly., Re 108 

Pike V. Keene 338, 392 

V. Robinson 427 

Pilcher, Re 538 

V. Arden 17, 18 

V.Hinds 353 

Pilgrim v. Hirsehfeld 5 

Pilley V. Baylis 411 

Pilling, iJ« 117 

Pinee v. Seattle 7 

Pincke, Ex parte , . 469 

Pinkerton v. Easton 18 

Pinney v. Hunt 252, 264 

Pinnook v. Bailey 462 

Piper V. Piper 455 

Pitt, Re 78 

V. Brewster , 334 

V. Jones 180 

Pitts, Re 121 

Plant V. Kendrick 389 

Piatt V. Mendel 376 

V. Walter 464 

Pledge V. Boss 379, 656 

Plestow V. Johnson 642 

Plimpton V. Malcolmson 614 

Plomer v. Macdonough 188 

Plomley, Re 98 

Plumer v. Gregory 334 

Plumley v. Horrell 382 

Plyer, Re 69 

Pole V. Pole 33 

Polini V. Gray, Sturla v. Erecoia . 517 

Pollack V. Birmingham Ely 30 

Pollock V. Rabbits 497 

Pommerania, The 373 

Ponsford v. Swayne 382 

Ponsonby v. Hartley 387 

Pontif ex v. Foord 348 

Poole V. Gould 316 

Pooley V. Bosanquet 413 

V. Driver 401 



PAOE 

Pooley's Trustee v. Whetham . . 542 

Poplar School, Re 51, 58 

Popple and Barratt, Re 108 

Portadown, Ex parte 29 . 

Portarlington v. Damer 518 

Porter, Re (3 W. R. 583) 66 

(2 Jur. N. S. 349) ... .79, 81 

V. Lopes 181, 183 

V. West 16, 18, 464 

Potter, Re 97 

V. Cotton 515, 517 

Potteries, Shrewsbury and North 

Wales Rly. Co., Re 171, 172 

Potts, Re 489 

V. Leighton 472 

PoweU, Re (4 K. & J. 338) 65 

V. Jewesbury 257, 379 

V. Matthews 68 

V. Oakley 96 

V. PoweU 183, 492 

V. Williams 411 

Power, Re 39 

Powlett (Earl) v. Hood 103 

Powys V. Blagrove 469 

Practice (W. N. (1884), 91) 265 

Pratt V. Walker 478 

Presoott B. Wood 38 

Press and Inskip, Re 10 

Prestuey v. Colchester (Corpora- 
tion of) 391 

Preston v. Dania 330, 366 

V. Dickinson 322 

V. Lamont 321 

Price, Re 72, 75, 79, 164, 369 

V. Berrington 336 

V. Hutchison 188 

V. Salisbury 518 

Prideaux, Ex parte 4 

Priestman v. Thomas 252, 264 

Primrose, Re 88 

Prince v. Cooper 474 

V. Hiue 548 

V. Howard 380 

Pi-ince of Wales, &o., Co. ». 

Palmer 347 

Pring, Re 88 

Pringle v. Gloag 557 

Printing Co., JJ« 280 

Prioleau v. United States 385 

Pritohard v. Roberts 16, 18 

Prole V. Soady 427 

Protector Co. ». Whitlam 452 

Prothero v. Thomas 8 

Prowse V. Spurgin 500, 506 

Pryor, Re 41, 43 

V. Pryor 180 

Pryse, Re 84 

V. Pryse 406 

Pugh, Re (17 Beav. 336) 5 

(32 Beav. 173 ; 1 De G. 

J. &S. 673) ....7, 12, 14 

Pullen, Ex parte 9 

Pumfrey, Ex pmte 41 

PuTcell V. Manning 606 

Puttrell, Re 68 

Pyman v. Burt , . . , , , , 449 



xlviii 



TABLE OF CASES. 



Q. 

FAGB 

Quartz Hill Co., Re 427 

V. Eyre 540 

Queade, Re 193 

Queen Camel (Vioar of), Be 29, 40 

Queen's College, Ex parte 28, 59 

Quilter, Ex parte 8 

». Heatly 389,391 

1). Mapleaon 113 

Quin 4). Ratolifl 383, 387 



E. 



Babbits v. Woodward 453 

Eadcliffe, Re 260 

Rafael «. Ongley 317 

Raggett, Re 115 

Railston, Ex parte 39 

Ralli V, XTniversal Assurance Co. 617 

Ralph V, Carrick 512 

Ramabotham ». Senior 383 

Ranoe, Re 12 

Randall, Re 73 

Randfield ». Randfield 469 

Ranelagh, Re 34 

Ranking, Re 347 

Ransom, Re 7 

Ranson v. Patton 352 

Raphael, Re 79 

Rasbotham v. Shropshire Union 

Co 385 

Rathbone, Re 66, 70, 79, 82 

Raven, Re 20 

Rawley v. Rawley 365 

Rawlins v. McMahon 345 

V. Wiokham 423 

RawUnson t. MiUer 183 

. 1>. Moss 17, 549 

Ray, ij« 150,155 

». Barker 330, 331, 332 

Raymond v. Lakeman 10 

V. Tapson 427 

Reading v. Hamilton 40 

Real and Personal Advance Co. v. 

McCarthy 373, 374 

Reaston, Re 30 

Record and Writ Clerks, Re .... 434 

Reddish, Ex parte 612 

Redgrave v. Hurd 260 

Eedondo v. Chaytor 641 

Reece v. Taylor .• 469 

Reed v. Don Pedro Mining Co. . . 397 

V. Prest 335 

Eees, Re 10, 344 

». Brailley 317 

i>. Metpn. Bd. of Works 399 

v. Williams 7, 21 

Reeve v. Reeve 606 

Reg. V. Boyes 426 

i>.' Cheshunt Local Board . . 372 

V. Eastwood 9 

V. Keyn 321 

». L. C. & D. Ry. Co 558 

V, Nash 98 



PAQB 

Reg. V. Pratt i 188 

Rehden v. Wesley r 427 

Eehoboth Chapel, Re 29 

Reid V. Langlois 889 

ReiEy v. ReiUy 101 

Reinell v. Simpson 52 

Remnant, Re 8 

V. Hood 548 

Eenshaw, Re '. 80 

V. Renshaw 367 

Eeynault, Re 81 

Reynolds, Re 30 

V. Caswell 5 

V. Godlee 383, 389 

Rhodes, Re 46 

V. Rhodes 505 

Rhys V. Dare Valley Ry r 47 

Richards, Ex parte (1 J. & W. 

264) 88 

Ji!«(8Ect 119) 64 

(5 De G. & Sm. 636) 83, 84 

(11 Ch. D. 676) .... 280 

V. Culleme 275 

V. Curlewis 440 

V, Kitchen 465 

V. Scarborough Market 

Co ,.... 315 

Richardson v. Elmit 466 

V. Grubb 88 

V. Hastings 389 

V. Leake 308 

Ridgway v. Edwards 341 

Ridley v. Ridley 428 

V. Sutton 549 

• V. Tiplady 400 

Ridsdale, AUanlee v. Great W. 

Ry.Co 317 

Rigg, J2« 492 

Rimington v. Hartley 186 

Rio Grande Do Siil Steamship 

Co., Re 266 

Rives V. Rives 91 

Robarts v. Ba^e 553 

Roberts, Re (9 W. R. 758) 81 

(17 W. R. 639) ... .54, 55 

(7 Jur. N. S. 818) . . 30 

». Albert Bridge Co. . . 188 

V. Ball 52, 69 

V. Death 457 

V. Lucas 4, 5 

■ V. Oppenheim .... 384, 390 

Robertson, Re 55 

V. Wrexham Ry. Co. 171, 

173 

Robey v. Whitewood 544 

Robins, Re 30 

V. Goldingham 9, 17 

V. Mills 6 

Robinson, Re (L. R. 3 Ex. 4) . . . . 7 

■- (11 W. R. 1035) . . 64 

(W.N. (1873), 28 380 

's Trust, Re 54 

= V. Aston 544 

: V. Barton (Local Board 

for) 380 

V. Budgett 387 

V. Chadwiuk 373, 417 

■■^- «. Drakes 512 

1\ Nesbitt 459^ 



TABLE OF CASES. 



xlix 



FAQB 

Bobiuson v. Eobinson 420 

V. Trevor 107 

■ V. "Webster 388 

Bobson V. Dodda 188 

V. night 383 

Roe V. Davies 377 

V. Hammond 449 

Boebuok v. Chadebet 180 

Eoffey V. Miller 351 

Rogers v. Hooper 341 

V. Jones 263, 346 

V. Mort 493 

Eolfe V. Maolareu 365, 396 

Rolle's Charities, Be 79 

Eomilly v. Grint 342 

Romney, Jte 42 

Rooney v. Whiteley 420 

Roskell, iS« 81 

Ross, Me 54, 55, 61 

V. Ashwin 545 

V. Gibbs 383 

V. Laughton ....^ 17 

Rotherham v. Priest 331 

(Mayor of) v. Peace. . 408 

Roughton V. Gibson 181 

Rourke ». White Moss CoUieiy Co. 616 

Routh V. Tomlinson 493 

Rowcliffe V. Leigh 268, 385, 392 

Eowe V. Gray 181 

Rowlands v. Evans 345, 347 

Eowley, Se 88 

V. Burgess 470 

Eowsell V. Morris 343, 345 

Royal Society and Thompson .... 108 

Royle, £e 308 

Rubery v. Grant 360 

Eucker v. Soholefield 346 

Eudge V. "Weedon 59 

Eudyerd, Se 29 

Eumbold v. Forteath (3 Kay & J. 

44) ... . 383, 387 

(4Jm-.N.S. 

608 478 

Enmsey v. Erausey 476, 551 

V. Eeade 396 

Eannacles v. Mesquita 331 

Eush, Se (9 Eq. 147 ; 18 "W. R. 

331) 189, 455 

(lOEq.442) 178 

EusseU, Se (12 Jur. N. S. 224) . . 78 

(1 Sim. N. S. 404) . . 74 

V. NichoUs 548 

V. Shenton 36 

V. Tapping 446 

Eustomjee ». Eeg 201 

Euston V. Tobin 333, 411 

Rutter V. Marriott 475 

V. Tregent 369, 396 

Ruttledge f . Whelan 113 

Ryalls V. Eeg 4 

Eyan, JJe 73,465 

Eymer v. De Eosaz 549 



S. 



St. Aubyn v. Smart 334 

St. Bartholomew' 8 Hospital {Ttus- 
tees oi), Mx parte 41 



PAQB 

St. Giles' Volunteer Corps, Se ,. 51 
St. James' (Rector of), Ex parte.. 43 
St. John's Coll., Ex parte. .Zl, 49, 369 
St. Katharine (Hospital of), Ex 

parte 39, 40, 41, 639 

St. Katharine's Dock Co., Se . .39, 41 

St. Luke's (Vestry of), Se 30 

St. Margaret (Prebend of), Se .. 42 

St. Martin (De) v. Davis 541 

St. Martin's, Birmingham (Rector 

of). Ex parte 31 

St. Mary's (Vicar of), Ex parte . . 31 

St. Nazaire Co., Se 253, 510 

St. Olaf , The 373 

St. Pauoras Burial Ground, Se .31, 37 
St. Paul's (Dean of). Ex parte (U 

"W. R. 482) . 34 

(18 "W. R. 

724 ; W. N. (1870) 93) 445 

St. Paul's Schools, Se 43 

(Precentor of), Ex parte. 34 

St. Sepulchre's (Vicar of), Ex parte 38 
St. Thomas' Church, Bristol (Trua- - 

tees of), Ex parte . 34 

Hospital, Be 29 

(Governors 

of). Ex parte 39 

St. Victor V. Devereux 341, 342 

Sabin v. Heape 403 

SafBery, Ex parte 514, 516, 537 

Salisbury (Marquis of). Be 108 

Sahu Kyrburg v. Posnanski, , 265, 455 

Salomon v. Stalman 433 

Salt V. Cooper 177, 252, 257 

Saltaah (Corporation o^ v. Good- 
man 517 

Salvidge v. Tutton 433 

Salway v. Salway 472 

Sampson, Se 96 

V. Seaton Rly. Co 457 

Sams V. Cronin 97 

Sanders v. Homer 91 

V. Sanders 511 

Sandford v. Sandford 326 

Saner v. BUton 540 

Sansom v. Sansom 454 

Sargant v. Read 469 

Sargent v. Gannon , 6 

Saull V. Browne 387, 392 

Saumarez, Se 84 

Saunders v. Jones 385, 392 

D. Richardson 518 

V. Walter 492 

Savage, Se , 85 

V. Snell 402 

J),. Tyers 405 

Sawyer, Ex parte 549 

V. Sawyer 350 

Sawston (Vicar of), .Es^jaj-Ze .... 40 
Saxby v. Gloucester Wagon Co. . . 268 

Saxton V. Bartley 180 

Sayer v. Wagstaff 7, 12, 13, 14 

Sayers v. Corrie 463 

Saywood v. Cross 544 

Schneider v. Batt 350 

Schofield, Be 89 

Soholefield©. Lockwood ..16, 18, 399 

Sohrceder v. Central Bank 259 

Scorfield v. Jones 553 



TABLE OF CASES. 



PASE 

Scott ,i>. Fleming ,, 17 

Sootti). Hereoh 79 

». Lord Hastings 459 

V. Matthew Brown & Co. . . 113 

V. Mayor of Liverpool 440 

V. Eoyal Wax Caudle Co. . . 321 

Soriyen, Se 435 

Scrirener v. Smith 56 

Scully V. Dundonald 257 

Seagram i>. Tuck 472 

Searle v. Cheat 469 

V. Matthews 509 

Seaton v. Grant 271 

Sedgwick J). Thomas 120 

Seear v. Lawson 337, 351, 352 

V. Webb 440 

Seilaz v. Hanson 641 

Seligmann v. Young 357 

Senior ». Hereford 183 

Severance i>. Civil Service Associa- 
tion 192 

Sewart, Jie 40 

Sewell, Be 34 

Shaokell, Me 12 

Shakespeare Walk School, He.. ., 43 

Shapoott V. Chappell 442 

Shapland, Be 454 

Sharp V. Lush 344, 347, 499 

V. Wright 648, 652 

Sharpe, Se 55, 58, 59, 465 

Shaiyley, Me 83, 84 

Sharshaw ». Gibbs 57 

Shaw, Ex parte 29 

J?« (20L. J., Q. B. 280).. 9 

(12 Eq. 124 103 

' V. Brown < . 464 

1!. Hardingham 336 

V. Jersey (Earl of) 468 

■ V. Johnson 548 

V. Rhodes 472 

Shearman v. Eindlay 322 

Sheffield (Corporation of), Mx parte 28, 

40 

(Town Trustees of), Ex 

parte 40 

•D.Sheffield 510 

Shelford v. Louth Ely 330 

Shelmerdine, Me 80 

Shepard v. Jones 399 

Shepherd v. ChurohUl 72, 78 

■ V. Stone 317 

Sheppard, Me , S3 

Sherard, Me 66, 67 

Sherratt v. Bentley 88 

Sherwin v. Selkirk 280 

Sheward ». Lonsdale (Lord) .... 385 

ShUlito V. Child & Co 317, 318 

Shipperdson, Me 81 

Shippey v. Grey 18, 467 

Shipton-under-Wyohwood (Rec- 
tor of). Ex parte 29 

Shoetensaok v. Price 813 

Shrewsbury (Earl of) v . North Staf- 
fordshire Ely. Co. . . 33 

: V. Trappes . . 518 

Shubrook v. Tufnell 515 

Shurmer v. Hodge 321 

Shuttleworth, Ho 39 

Sickles V. Morris 514 



PAGE 

Sidebotham v. Watson 402 

Sidebottom v. Sidebottom 463 

Sidney v. Wilmer 41 

Silver »., Stein 345 

1). Udall 183 

VaUey Mines, Me 266 

Simmonds «;. G. E. E. Co 17 

Simtnons v. Storer 557 

Simqns v. Bagnell 400 

Simpson, J?c. 5, 6 

V. Brown 382 

V. Denny 183, 335 

V. Eitchie 183 

Simson, Me 103 

Singer v. Audsley 427 

■ Co. V. Lopg 411, 550, 552 

Singleton, Me 44 

,^. Hopkins 68 

Skegg, Me , 28 

Skiuper v. Great Northern Eail- 

way 382 

Skitter, JSe 64, 68 

Skynner v. PeUohet 85, 91 

Sladden, J2e 13 

Slade, Me 317 

V. Hulme 454 

Sleight V. Lawson 398 

Sloman v. Governor of New Zea- 
land 317, 319 

Sloper, Me 83, 84 

Smirthwaite, Ee 81,83 

Smith, Ex parte (6 Ely. Cas. 

150) 42 

(22 W. E. 294) . . 96 

iJ^ (9 Eq. 178) 31,40 

(9 Eq. 374) 66 

(4 Beav. 309) 6, 6 

(9 Beav. 342) 8 

(3 Jur. N. S. 659) .... 59 

(W. N. (1872) 134 ; 20 

W. E. 695) ....81, 103 

(9 W. E. 396) 17 

(IP. D. 300) 321 

Hutchinson ». Ward.. 406 

& Stott, Me 123 

Oompton, Me 479 

V. Andrews 335 

41. Armitage 397 

V. Armstrong 606 

■ B. Baker 666 

V. Barnes 384 

V. Bell 409 

V. Boucher 68 

■ V. British, &o. Association 360 

V. BuUer 548, 555, 668 

V. Chadwick 549 

■ V. Comfoot 641 

V. CoweU 177, 468 

V. Daniell 382, 651 

V. Davies 435 

V. Day 468, 546 

V. Dimes 8 

V. Dixon 378, 479 

V. Dobbin 311 

». Grindley 513 

v. Guy 400 

4). Marshall 318 

V. Morgan 280 

V. Nelson 475 



TABLE OF CASES. 



U 



PAOE 

Smith V. Nth. StafBorduhire Ely. 

Oo 411 

V. Pawson 341 

II. Pilgrim , 440 

V. Reed 393 

V. Richardson . . 333, 353, 354 

V. Robinson 100 

i: Smith (3 Drew. 72 ; 18 

Jut. 1047) . . 69 

(1 Dr. & Sm. 384) 101 

(7 P. D. 227) . . 542 

r. Swansea Dock Co 439 

V. Watts 347 

V. WegueUn 317 

V. "Went 393 

V. Whiohcord 465 

». White 516 

V. Wilson 309 

V. Winter 18 

Smith's Leaseholds, Se ...,,... 30 

Smyth, i:x parte 30 

iJe(ll W. R. 850) 51 

(4 De G. & ^ 499 ; 15 

Jur. 644) 82, 92 

(2 De G. & Sm. 781).. 83, 

84 

Sneary v. Ahdy 449 

Snell, Se 566 

Snow V. Bolton 454 

Solicitor, £e A (26 Sol. J. 8) .... 513 

(W. N. (1884) 

217) 446 

(14 Ch. D. 152 ; 

28L.T. 310).. 455 
(1 Ch. D. 446; 

24W.R.103).. 455 
Somerset & Dorset Rly., Se .... 173 

Somerville, £x parte 46 

Somes V. Martin 552 

Soutar, JJ« 196, 200 

South, Be 177 

Essex Co., JJe 17 

Wales R^., Sx parte 48 

He 45,88 

Western Bank v. Turner ... 116 

Loan Co. ■!). Robert- 
son 459 

Southwark Water Co. v. Quick. .382, 

385 

Southwell V. Scotter 259 

Southwold Bill, Be 49 

Sowry, Me 30 

Sparks, iJc 87,88 

Sparrow, Be 80 

Spartali v. Van Hoorn 356 

Spawforth, Be 74 

Speckhart v. Campbell 321 

Speer, Be 29 

Speight, iJ« 512 

Speller v. Bristol Navigation Co... 321, 

348 

Spencer (Earl) v. Peek 430 

Be, Spencer v. Hart .... 40 

V. Bryant 341 

Spettigue, Be 543 

Spioer,i2e 189 

Spier V. Bernard 4 

Spiller, JJe 103 

. V. Paris Skating Rink Co.. 423 



PAaB 

Spittle V. Walton 437 

Spooner, Be 44, 46 

Spradbery, j8e 107 

Spratt's Patent v. Ward 411 

Sproat V. Peckett 320, 538 

Springall, Be 108, 423 

Sprunt V. Pugh 451, 454 

Spurstowe's Charity, Be 30 

Staoe V. Gage 183, 335 

Staoey v. Southey 470 

Stafford E^., Be 173 

V. Coxon 268 

& Uttoxeter Rly., Be .... 168 

StajSordshire Bank v. Weaver . . 539 

Stahlschmidt v. WaKord 373 

Stainbank «. Beckett 514 

Staines Rly., Be 50 

Stainton v. Carron Co 398 

Standard Co. v. La Grange . . 330, 515 

Discount Co. ■!>. Barton 464 

Standering v. Hall 30, 182 

Stanes v. Parker 13, 14 

StangerLeathes«'.StangerLeathes447, 

549 

Stanhope Co., Be 456 

Collieries Co., Be 280 

Stanlake, iJ« 191 

Stanley v. Stanley 460 

Stannard v. Vestry of St. Giles . . 468 

Stansfield v. Hobson 335 

Stanton v. Baring 551 

Staples, Ex parte 32, 42 

Stebbing v. Atlee 493 

Steed, Be 36 

V. Preece 182 

Steel V. Cobb 327 

Steele, Ex parte 4, 17 

Be 12 

V. Scott 17 

V. Stewart 382 

Stening, Be 53, 212, 226 

Stent V. Wiokens 386 

Stephen, Be 5, 10, 1 3 

Stephens, Be 206 

V. Lord Newborough . . 549 

jj. Wanklin 426 

Sterry, Be 37 

Steuart v. Gladstone 422, 423 

Stevens, Ex parte (15 Jur. 243) , . 41 

(2 Ph. 772) .... 48 

i>. Mid-Hants Rly. Co. .. 173 

v^ Newborough (Lord) , , 559 

V. PheHps 456 

Stevenson v. Abington 499 

Steward, Be 34 

Stewart, Be (1 Sm. & Gifl. 32) . . 28 

■ ■ (8 W. R. 297).. 65, 67, 80 

(8 W. R. 425) 66 

(2 De G., P. & J. 1) . . 73 

V. England (Bank of) . . 307 

V. Stewart 504, 541 

Stigand v. Stigand 307 

Stimpson v. Jepson 549 

Stock, Ex parte 58 

— ' Be 29 

V. Hooper's Telegraph 

Works 516 

Stookbridge Rly. BUI, Ex parte . . 50 
Stockton Iron Co., Be 511, 515 

cl2 



Ui 



TABLE OF CASES. 



PAQE 

Stoer, Ee 430 

Stokes, Re . ; 81 

V. City Offices Co 494 

; — V. Trumper 6, 7 

Stone V. Stone 91 

V. Wishart 469 

Stonor, Be 193, 200 

Stooke V. Taylor 271, 356 

Storey v. Waddle 463, 464 

Straford, He 10, 11 

Straight, Ex parte 380 

Strathmore Estates, Ee 83 

Street, Ee 7, 12 

V. Crump 377 

V. Grover 336 

Strelley v. Pearson 467 

Strickland v. Strickland 379, 556 

Strong, Be 96, 97 

V. Moore 344 

V. Strong 59 

Strother, iJe 6, 7, 8, 13 

Stroud, Ee 76 

V. Norman 68 

Strousberg v. Costa Rica (Re- 
public of ) 319 

Strugnell v. Balkis Co 426 

V. StrugneU 182 

Stuart, Be 88 

V. Cookerell 461 

V. Greenall 549 

Stubbs, Ee 465 

Studdert, Ex parte 28 

Sturoh V. Young 478 

Sturge, Ee 67 

V. Dimsdale 558, 559 

Sturla V. Erecoia, Polinii). Gray. .517, 

542 

Stutely, Etn parte 60 

Styan, Ex parte 44 

Suohe & Co., Ee 280 

Sudlow, Bi 6 

Suflolk V. Lawrence 488 

Sullivan v. Eivington 268 

Summerfield v. Pritehard 391 

Summers, Be 280, 504 

Sumner, Be 487 

Sunderland (Ereemen and Stal- 

lingers of), Ex parte 36, 37 

Surr V. Walinsley 425 

Sutolifie V. James 365 

Sutberland (Duke of) v. TunstaU 

Board.. 337 

V. De Virenne .... 346, 

347 

Sutton, Ee 12, 62, 56, 269, 562 

V. Jones 469 

r V. Dickon 469 



Swaine v. Denby 181 

Swale V. Swale 463 

Swallow V. Binns 346, 347, 404 

Swan, Ee 64 

V. Webb 474 

Swanu ii. Barber 514 

Swansea Building Society v. 

Davies 441 

(Mayor of) v. Quirk 385 

— Vale Ely. Co. v. Budd. . 391 

Swanzy v. Swanzy 541 

Swayne ». Swayne 461 



FAQE 

Sweeper, Be 65 

Swift -ii. Swift 98 

Swindell v. Birmingham Syndi- 
cate 373,411,616 

Swire, Be 466 

Sykes^JJe 427 

V. Brook 640 

V. Dyson 190 

V. Eirth 411 

V. Hastings 469 

V. Schofield . . . .180, 183, 406 

Symons, Ee, Luke v. Tonkin .... 397 



T., JJ« 103, 339 

Taitt,iJ« 89 

Talbot V. Eeay 566 

V. Marshfield 383, 391 

». Talbot 338 

Tamplin v. Miller 120 

Tanfield v. Irvine 469 

Tanner, Be 66 

Tanqucray-Willaume, Be 108 

Tanswell v. Scurrah 428 

Tapp V. Jones 466, 457 

Taprell v. Taylor 341 

Tarbuck v. Tarbuck 8 

V. Woodcock 648 

TardiS v. Robinson 84 

Tardrew v. HoweU 16 

Tarn ». Commercial Banking Co.. 371 

Tarrett v. Lloyd 346 

Tasmanian Co. v. Clark 413 

Tate, Ji!« '. 57 

V. Hitehens 5 

Tatham, Be 81 

Tattersall -o. National Steamship 

Co 401 

TaweU v. Slate Co 353 

Tayleur, Be 430 

Taylor, Be (4 Ch. D. 167 ; 25 W. 

R. 69) 98 

(40 L. J. Ch. 454) .... 29 

(1 Eq. 495) 400 

(15 Beav. 145) 6 

■ (18 Beav. 165) 10 

(1 M. & G-. 210) 41 

(9 Hare, 596) 28 

(W. N. (1866), 61 78 

(31 W. R. 696 ; W. N. 

(1883), 95) 155 

Tomlin v. Underhay . . 401 

V. Ansley 327 

V. Batten. 388 

V. Collier 338 

V. Directors of the Chi- 
chester Rly 33 

V. Dowlen 266 

4). Eckersley . . . ,468, 469, 472 

». Grange 181,611 

V, Hodgson 4, 6 

V. Keily -, 437 

D, Midland Rly. Co 618 

r. Milner 380 



tablS of cases. 



liii 



PAGE 

Taylor v. Mostyn 497 

V. Oliver 388 

V. Pede 326 

4'. Phillips 316 

V. Poneia 167 

V. Rmidell 387, 388, 389 

Taylor's Case 516 

Teague, Se 9 

Teale v. Teale 465 

Teall V. Watts 183 

Teed v. Beere 505 

Tees Bottle Co., ite 516 

Teevau «. Smith 130 

Tegg,JJe 56 

Teign VaUey Ely. Co., Se .. 170, 171 

Tempest, Jfe 80 

V. Camoys (Lord) 491 

«.Ord 469 

Temple Church Lands, Bristol, 

Se , 41 

Templer, Se 69 

Temiant v. Trenchard 380 

Tetley, Hx parte t 43 

Thakeham Monies, Se 53 

Than v. Smith 318 

Tharp, In the goods of 257 

Thatcher, Se 103, 122 

Theys, ^x parte 259 

Thistlethwaite v. Gamier 404 

Thomas, Se 52 

(12 W. K. 546) 42 

(11 W. R. 276) 59 

(22 L. J., Ch. 858) . . 88 

("W. N. (1882), 7 ; 30 

W. R. 244) 30 

V. Cross 4 

V. Ellis 340 

v. Griffith 499,505 

V. Nokes 445 

V. Palin 373, 555, 560 

V. Parry 424 

V. Patent lionite Co. . . 280 

B. RawHngs (27 Beav. 

140) 383 

(27 Beav. 

375) .... .386 

V. The Queen .... 201, 387 

V. Thomaa 326 

V. Walker 87 

V. Williams .... 141, 411, 

468 
Thompson, Ex parte (3 L. T. 317) 18 

(W.N. (1884), 

28) 120 

iJe(14L. T.) 7 

(8 Beav. 237) .... 13 

V. Dunn 392 

V. Jones 318, 327 

V. Marshall 331 

V. Partridge 440 

». Ringer 108 

: 1;. Tomkins 66 

V. Woodflne 413 

Thomson, Se 79 

J,, S. E. Ely 2S7, 465 

Thorley's Cattle Food Co. v. 

Massam 549 

Thorn V. Smith 318 

Thome v. Seel 331 



PAOE 

Thomhill v. Millbank 30 

V. ThornhiU 469 

Thomiley, Se 371 

Thornton, Se 58, 78 

. V. Finch 177 

Thorold, Se 369 

Thorp V. Holdsworth . . 358, 359, 396 

V. Owen 484 

B. Thorp 58 

ThreUall v. Wilson 193 

Thurgood, Se 7 

Tibbs, Re 103 

Tichbome v. Mostyn 188 

Tid St. GUes' Charity (Trustees 

oi,Exparte 30 

Tiel, Se 380 

TifBu B. Parker 464 

Tildesley v. Harper 333, 337, 358, 359, 
377, 396 

TiUeard, Se 5, 8 

Tillett V. Nixon 115, 468 

TiUstone's Trusts, Se 53, 69 

Tilney v. Stansfeld 189, 455 

Timins, Se 465 

Tipper v. SoUleux 30 

Tipton Green Co. v. Tipton Moat 

Co 399 

Tobin V. The Queen 201, 202 

Todd V. Wilson 13, 14 

Toghill V. Grant 6, 9 

Toke V. Andrews 356, 370 

Toleman and England, Se, Exparte 

Bramble 17 

Tolson 11. Jervis 532 

Tomlin ». Underhay, iJ« Taylor.. 401 

Tomline v. The Queen . . 201, 387 

Tookey, Se 44 

Topping V. Searsou 315 

Torkington, Exparte 436 

Tottenham Railway, Se 48 

V. Barry 322 

Toumay, Ex parte 54 

Towle, Se 13 

Townsend (2 Ph. 348) 88 

(1 M. & G. 686) 88 

V. Townsend 253, 343 

Townshend's Estates, Marquis, iJ« 28 

Towse V. lioveridge 360 

Tracey, Se 68 

TcaSoTdi, Ex parte 40 

Trail v. Jackson 516 

Travis v. lUingworth 80 

Treheme v. Dale 445 

Treleven v. Bray , 355 

Trevelyan v. Charter 380 

Trick, iJs 56 

Tiimiuger v. Keene 449 

Trinity College, Cambridge, Ex 

parte , 29 

House (Corporation of), 

Ex parte 40 

Trowell v. Shenton 515 

Trower, iJe 68 

Truman v. Redgrave 468 

Tubb, iJe 68 

Tuck, Se 102 

Tucker, Exparte 514, 516 

TufneU, Se 201 

TugweU, Se 37 



liy 



TABLE OF OASES. 



PAQE 

Tullooh V. TuUooh 474 

TunstaU, He (4 De Q. & Sm. 421 ; 

15 Jur. 645) 80, 81 

Turnbull v. 'Janson 548, 549 

Turner, Jix parte 12 

,ii!e Gumming .. 19 

^ (2 De a. E. & J. 

354) 456 

, He (33 L. J., Ch. 232 ; 12 

W. R. 337) 104 

'sEstate,iJe(10W. K. 128) 39 

V. Bridgett 509 

V. Burkensliaw 384 

• V. CKfford 454 

V. Hancock 266, 540 

V. Hand , , , , 14 

11. Hednesford Gas Co. . . 356 

S.Hodgson 380 

V. L. & S. W. Ely 445 

V. MuUineux 88 

». Snowdon 327 

V. Speakman 66 

1!. Tumer(7W.E,.573).424,658 

■ — (15 Jur. 1165).. 479 

Tumey v. Bayley 392 

Tumley, Re 56 

Turquand v. Pearon 333 

«>. WUson 396 

Turton ». Barber 382 

Tweedale, Se ,. 56 

Tweedy, He 84, 481, 487 

Twinberrow v. Braid 649 

Twycroas v. Grant 351, 392 

Twyford Abbey, Se 149 

Twynam v. Porter 15, 18, 346 

Tylee v. Tylee 472 

Tyler,. JJe 56 

Tyrone (Earl of) v. Marquis of 

Waterford 405 



U. 

Umfeeviile v. Johnson 336 

TJnderdown v. Stannard 433 

Undertaking of West Riding, &c., 

lie 49 

Underwood, He 64, 68, 70 

1!. Secretary of State 

in Council 552 

Unglees v. TufE 369 

Union Bank 41. Ingram 116 

v. Manby 387 

United Kingdom Assurance Co., 

Se.: 52 

Telegraph Co., 

Se 465 

States of America v. M'Eae 383 

«. Wagner 385 

■ Telephone Co. v. Dale . . 468 

Upfull, Se 64, 67 

Upmann v. Eorester 540 

Upperton, Se 8 

Upton V. Brown 492, 605 

Usil V. Brearley 516 

Usill V. Whelptou 411 

Ustioke V. Peters 402 



V. 

PAGE 

y.,Se ...... „ 189, 465 

Vaoy V. Vacy 347 

Val de Travels Co. v. London 

Tram.ways Co 333 

Vale V. Oppert 388, 517 

ValentinjB v. HaU 423 

Vallapce, Se 15 

; — V. Birmingham Invest- 
ment Corporation 336 

Vancouver v. Bliss 539 

Van 4er Kan v. Ashworth 564 

Vanderwell v. Vanderwell 400 

Vane v. Vane 339, 430 

Van Gheluive v. Neiiuckx 104 

Vansittart v. Vansittart 99 

Vardy, JJe 10 

Varley, Se 439 

Varteg Chapel, Se 433 

Vaudrey, Se 43 

Vaughan v. Eitzgerald 430 

-. :;. Mariiuis of Headfort 227 

Vavasseur v. Krupp . .' 356 

Vawdrey, Se 41 

Veal J.. Veal 231 

Veitch V. Irving 543 

Velati V. Braham 467 

Venables v. Schweitzer 493 

Venour's Settled Estates, Se 29 

Ventnor Harbour Co., Se 179 

Verminck v. Edwards 392 

Vernon v. St. James's, Westmin- 
ster (Vestry of) 549 

VerraU «. Cathoart 181 

Viall, Se 88 

Vickers, Se 65, 80 

Vidler v. Parrott 369 

ViUeboisnet v. Tobin 383 

Vincent, Se 308 

V. Vernier 10 

Vines, Se 8 

Viney, Ex parte 514, 537 

Se 18 

®. Chaplin 380, 478 

Vivar, The 321 

Vivian v. Little .' 389 

Vorley v. Richardson 404 

Vyse V. Brown 466 

V. Poster 18 



W. 

Waoher, Se 67, 74 

WaddeU, Ex parte 266 

Se - . 79, 108 

V. Blookley 616 

WaddUove v. Taylor 462 

Wade V. Wilsou 116 

Wagner v. Mears 342 

WagstafE v. Jacobowitz 330 

Waite V. Bingley 180 

V. Littlewood 105 

Wake V. Wake 70, 78, 90 

Walburu v. Ingilby 517 

Walford v. Walford 617, 618 

Walhampton Estate, Se 52 

Walker's Estate, Se (22 L. J., Ch. 

888) 37 



TABLE OF CASES. 



Iv 



PAGE 

Walker, JJs (24 Oh. D. 698) .... 117 

■ r- .(7 Ely. Cas. 129) ... . 41 

r- (16 Jut. 1154) 57 

(3 Oh. D. 209) .... 64, 69 

^ f . Balfour 348 

■■ — v.. Blackmore 351 

», Bvmkell 268, 421 

^ — V. Cratbree 409 

V. Hioka 309 

41. Poole 388 

V. Eooke , . 456 

r. Seligmann 344 

4'. Ware, &c., Ely. Co. . . 47 

Wallace ». Greenwood ..30,182,186 

Waller v. Holmes 17 

Walley, Be 490 

WaUingford v. Mutual Society , . 331, 

360 

WaUis V. Bastard 484 

V. Hepburn 374 

V. Jackson 376 

V. Lichfield 420 

V. Sarel .•. 397 

Walsh, Me 13 

V. Lonsdale 260 

V. Wason 462 

Walsham v. Stainton 382 

Walter r. Smith 337 

Walters, He 53 

V. Earl of Shaftesbury . 383 

V. Woodbridge 548 

Walton, ie« 4,15 

War (Secretary for) v. Chubb 468 

Warburg, Hx parte 511 

Warburton v. Hill 459, 461 

Ward, :Ex parte 34, 516 

— - Se (2 W. E. 406) 57 

(14 W. E. 96) ....;... 102 

(W.N. (1884), 211).... 30 

: — V. Booth 454 

V. Eyre 20 

V. HaU 268 

V. Hepple 17 

V. Lawson 7 

.V. Morse 365, 540 

V. Pilley 268 

V. Swift 472 

V. Ward 338, 456 

V. Wyld 275 

Warde, Se 105 

Warden v. Peddington 382 

Warder v. Saunders 351 

Ware v. Watson 506, 537 

Waring, Se 55, 56 

». Laoey 441 

V. Manchester, ShefEeld, 

and Lincolnshire Eail- 

way 478 

V. Williams 8 

Warner v. Armstrong 479 

V. Dell 263 

V. Mosses . . 422, 423, 552, 555 

11. Murdoch 412 

V. Twining 355 

Warr, De la, iJ« 103, 149 

(Earl De la) v. Miles . . 514, 549 

Warren, Se • • ■ ■ 120, 490 

Wairiek v. Queen's College, .383, 391 
Warwick Charities, Se 79 



FAOE 

Warwick Pearson, Se 55 

Ely., iJe 80 

Waterlow v. Burt 502 

Waters v. Shaftesbury 399 

u. Taylor 13 

V. Waters 317 

Waterton o. Burt 503 

Watkin, Se 69 

Watkins, Se, Ex parte Evans . . 177 

V. Atchison 430 

V. Parker , 341 

Watlington, Bo 62 

Watson, Be 67, 81 

». Cave 336,610,511 

V. Cleaver 440 

V. Gr. W. Eailway Com- 
pany 550 

■ V. HoUiday 351 

V. Eodwell 14, 360, 510, 

553 

Watt V. Barnett 317, 329, 377 

V. Leach 186 

Watts, Sx parte 9 

Se (24 W. E. 701) 52 

(22 Ch. D. 5) . . . . 485, 492, 

605, 640 

■ (9 Hare, 106) 69, 80 

V. Jeiferys 459 

V. Kelly 541 

V. Manning 379, 556 

V. Porter 459 

Waugh, Se (15 Beav. 508) 5 

■ (29 Beav. 666) 6 

(2 De G. M. & G. 

279) 65, 93 

V. Waddell 4, 5 

Wavell, Se 6, 7 

Way, Se 58 

Webb V. Bomford 386 

V. Byng 372, 405 

«!. East 385, 388 

V. Grace 6 

V. Salmon 317 

V. Stfenton 456 

Webster, Ex parte 37, 510 

V. British Association 

Co 346 

V. Le Hunt 17 

V. Myer 639 

V. WhewaU 389 

Wedderburn, Se 103, 105 

V. Pickering 411 

Wedderburne v. Llewellyn 479 

Weeding, Be 77, 89 

Weeks v. Stourton 384 

Weightman v. Powell 378 

Weise v. Wardle 334 

Welchman, Se 13 

Weldon v. Neal 192- 

V. Eiviere 192 

V. Winslow 192 

Weller v. Fitzhugh 64 

Wellesley v. Beaufort (Duke of) . . 98 

V. Momington 462 

V. Wellesley 341 

WeUs, Se (8 Beav. 416) ... 8, 10, 13 

(31 W. E. 764 ; W. N. 

(1883), 111) 163 

V. Chelmsford Local Board 36 



Ivi 



TABLE OF CASES. 



PAOE 

WeUs V. aibbs 459 

». Kilpin 177 

V. Malbon 54 

V. Mitoham Gas Co 549 

Welsh V. SilweU 4 

Wentwortli v. Lloyd 549, 559 

Wesson v. Stalker 307 

West ». WMte 411 

West of England Bank, Se 280 

Westbourne GroTe Co., Se 280 

Westerman v. Eees 509 

Western Benefit Building Society 439 

of Canada Oil Company, 

Se 425 

Westhead v. Eiley 177, 468 

V. Sale 87 

Westman v. Aktiebolaget, &o. . . 321 
Westminster Co. {Duoneas of), Se, 514, 

549 

Co. V. Clayton 387 

(Dean and Chapter 

of), iJe 34 

Weston V. Cohen 386 

». Davidson 116 

V. Filer 77, 90 

Westwood, -ffi« 91,92 

Weymann v. Corcoran 550 

Weymouth v. Lambert 317 

Whalley, iJe 6,8,658 

V. Williamson 9 

Wheeler, Se 88 

n. Gill 504 

1!. Le Marchant 383 

1). United Telephone 

Company 366 

Wheelwright ». Walker 141, 149 

Whetstone v. Dewis 353, 354 

Whioher, Se 13, 14 

Whistler v. Hancock 374 

Whitaker, Se 63 

v. Robinson 465 

V. Thurston 357 

White, Se (5 Ch. 698) .... 66, 67, 74 

(W. N. (1881), 115; 

29 W. E. 820) ..71, 107 

(19 W. R. 39 ; 23 L. 

T. 387) 189,465 

V. Baugh 472 

1). Chitty 335 

V. Stewart 344 

i). Witt 515 

Whiteaves v. Melville 346 

Whitehaven (Bank of) D.Thompson 317 

Whitehouse, Se 280 

Whitfield (Incumbent of), Se . . 29, 43 

V. Roberts 16 

Whiting, Se 69 

V. Bassett 433, 435 

to Loomes 108 

V. East London Water- 
works Co 358 

Whitley v. Honeywell 317 

' Hx parte 84 

. Se 57 

WhitUng, Se 42, 69 

Whitney v. Smith 344 

Whittington v. Gooding 347 

Whitton, Se 56 

Whitworth (Curate of), ^ar^arte . 33 



FAQE 

Whitworth v. Whyddon 506 

Whopham v. Wingfield 52 

Whyoherley v. Barnard 483 

Whyte V. Ahrens 357, 392 

Widgery v. Tepper 460 

Wigan Railways Act, Se 60 

Wight, Se 29 

Wightman v. Wheelton 428 

Wilder v. Pigott 339 

Wilding 4). Bolder 81 

Wiles V. Cooper 548 

Wilkes, iJe 34 

V. Saunnion 399 

WUkins V. Stevens 566 

V. Sibley 460 

Wilkrnson, £x parte (3 De G. & 

Sm. 633) 31, 34 

Se (9 Eq. 343) 369 

i (16 W. R. 537) .... 40 

(12 W. R. 522 ; 10 

Jnr. N. S. 716) . . 70, 78 

V. Belcher 341 

V. Castle 183 

!). Jobems.. 180, 181, 183 

V. Schneider 231 

V. Smart 5 

Wilks V. Groom 64, 68, 72 

WiUan, Se 84 

Willcook V. Terrell 454 

Willey V. South Eastern Railway 

Co 47 

WiUiam of Kyngeston's Charity, 

-S« 30, 31 

WiUiams, Se (15 Eq. 270) 104 

(15 Beav. 417) .... 7 

(28 Beav. 466) . . 9, 17 

(4 Kay & J. 87) . . 55, 56 

(5 De G. & Sm. 515) 77 

(7 Jur. N. S. 323) . . 389 

(8 W. R. 678) .... 96 

V. AUen 345, 346 

II. Aylesbury and Buck- 

iagham Rly. Com- 
pany 29 

V. Brisco , , 377 

V. Games 181 

». Griffiths 4 

V. Page 347 

V. Preston 6H 

V. Prince of Wales Assu- 
rance Co 389, 390 

V. Rowlands 345 

V. Snowden 266 

Williamson v. Jeffreys 492 

V. L. & N. W. Ely.'. 369, 

Willis V. Childe 386 

Willmott V. Barber .".'.'.',!! 540 

WillyamB v. Hodge " " ' 326 

Wills, JJe '\ 88 

— - V. Parkinson !!".!!!!! 380 

Wumott V. Young 375 

WSbovl, JEx parte !!."."!!.'.' 510 

Se (9 Jut. N. S. 1043 ;"32 

li. J., Ch. 191) 33 

(W. N. (1867), 110) .. 44 

{14"W. R. 161)...,..55, 56 

V. Alltree ..217, 219, 241, 407, 

559 



TABLE OP OASES. 



Ivii 



PAOE 

Wilson V. Applegarth 397 

V. Bates 188 

V. Chviroli..336, 337, 385, 516, 

517 

V. De Coulon 42t 

V. Dundas 456 

V. Emmett 9,17 

V. Poster 41, 42 

V. Gray 464 

V. Hood 17, 18 

V. Metcalfe 454 

V. Northampton Ey 382 

V. RastaU 383 

V. Rhodes 334 

V. Round 18 

V. Smltii .-. 516 

V. Thombnry 389 

V. Watson 537 

■■ — • V. West Hartlepool Ry. 

Co 518 

V. Wilson 472 

Wilton, He 13 

V. Hill 338 

Wiltshire v. Marshall 424 

Winchester (Bishop of), Sx parte 34 

V. Bowker 383, 

388 
College (Warden of), 

Ex parte 30 

Winder, Hx parte 36, 43 

Me 30, 37 

Windsor Ry. Se 39 

Winehouse v. Winehouse, Se 

Maggi 280, 281 

Wing V. Harvey 429 

V. Tottenham Ry 47 

Wingroye v. Thompson 347 

WinHey v. Winkley ...» 445 

Winterbotham, He 7 

Winterfield v. Bradnum 542 

Winteringham, Jie 66, 84 

Wise, JRe 55, 84 

Wiseman, JRe 88 

Witham v. Vane 348, 350 

Withemsea Brick Works, He.... 280 

Withey v. Haigh 479 

Withington v. Withington 80 

Witt V. Corcoran 266, 540 

V. Parker 509 

Wolff, JJe 47 

V. Vanderzee 398 

Wolley, Se 41 

«. Ajnley 540 

V. Groodwin 370 

r. Kay 411 

V. Swan 311 

Wolverhampton Co. v. Bond .... 317 
Wombwell v. Corporation of 

Bamsley 6, 10 

Wood, Se (10 Eq. 572) 34 

(11 Eq. 155) 56 

— — (15 Sim. 469) 69 

(3 De G. P. &. J. 125) . . 64, 

^ 67, 84 

, . V. Anglo-Italian Bank . . 392 

V. Beetlestone 77, 85 

D. Parthing 518 

. V. Weightman 102, 500 

V. Wheater 363, 447, 462 

M. 



PAOE 

Wood V. Wood 102 

Woodall, ^x parte 451 

Woodard, Se 12 

Woodbridge, Se 267 

Woodbum, Se (13 L. T. 237) . .39, 45 

— (1 De G. & J. 351) . . 54, 

65, 88 
Woodcock V. Oxford, Worcester So 

Wolverhampton Ry. Co 479 

Woodgate, Se 80 

Woodhatoh v. Ereeland 388 

Woodhouse v. Woodhouse 345 

Woods, Se, Ex parte Ditton .... 4 

V. M'Innes 322 

■ ■ V. Oliver 399 

'— V. Woods 553 

Woodward v. Pratt 231 

WooUard, Se 57, 58 

WooUett, Se 8 

Woolley V. Colman 116 

Wootton, Se 34 

V. Wootton 539 

Working Men's Mutual Society, 

Se 424 

Wormsley v. Sturt 399 

Worraker v. Pryer 308 

Worrall v. White 542 

Worth, Se 6 

V. Mackenzie 327 

Wortham v. Pemberton 97 

Wortley, Se 337, 466 

Wragg, Se 83 

D. Morley 499 

V. Wragg 440 

Wren v. Kirton 472 

Wrench v. Wynne 462 

Wrey, Se 31 

Wright, Se (3 Kay & J. 419) . .53, 56 

(1 Sm. & G. App. V.) 58 

(24 Oh. D. 662) . . 148, 149 

's Trusts, Se 54 

D. Clifford 417 

V. King 372 

J). Larmuth 503 

V. Pitt 387 

V. Redgrave 257 

V. Swindon Ry 374 

V. Tatham 430 

V. WilHn 425 

Wyohe, Se 13 

Wycherleyii. Barnard 606 

Wye Valley Ry. v. Hawes 348 

Wylde, Se 59, 84 

Wylly, Se 55 

Wyman v. Bockett 552 

Wymer v. Dodds 337 

Wynne v. Humberston 383 



Yaemo-dth Ry., Se 50 

Ya,teB, Ex parte (W.N. (1869), 150; 
17 W. R. 872; 20L. T. 940).. 44 

e 



Jviii 



TABLE OF CASES. 



PAQE 

Yates, Re 96 

V. Plumbe • 476 

Tearley, Re.. 436 

Tearsleyj). Tearsley 546, 659 

Teates, Re 40, 42 

Teatman v. Snow 309 

V. Teatman 533 

Teomans v. Haynes 503 

Tetts, Re 5, 6 

York V. Sto-wers 332 

Yorkshire Banking Co. v. Beatson 332 

' Ey. Waggon Co. v. 

Madure 168 

Tramway Co. ii. Egling- 

ton Co 321 



FAOB 

Yorkshire 'Wflggon Co." v. New- 
port Coal Co 348 

Young, Ex parte 338, 448 

Re 69 

V. Brassey . . 307, 322, 433, 439 

V. King 464 

V. Kitohin 259, 355, 364 

— — - V. Ward 335 



Z. 

Zambaoo v. Cassavetti 466 

Zulueta ». Vincent 316 



ADDENDA. 



j Adda reference to Cottrellv. Cottrell, W. N. (1885), 23. 



Page 18, line 30. Add a reference to Re United Shepherd's Wheal Co., W. N. (1885), 15. 

,, 34, line 45. 

,, 148, line 35. 

,, 153, line 43. Add a reference to Re Diike of Bucchuch's Estate, "W. N. (1885), 14. 

„ 183, line 30. Add— " As to an annuitant, see Foole v. Foole, W. N. (1885), 15." 

,, 193, line 10. Add — " Person, J., has held, that in the case of a -woman married 
before the Act, sect. 1 applies only as to property acquired by her after the 
Act {Re Harris, 28 Ch. D. 171)." 

,, 266, line S. Add — " An order dismissing an action for want of prosecution with- 
out costs is not subject to appeal [Snelling v. Fulling, N. W. (1885), 13)." I 

,, ,, line 50. Add — " On an appeal for costs the decision of the judge below will 
rarely be interfered with {Re Gilbert, W. N. (1885), 21)." 

,, 305, line 41. Add — "The Attorney-General of the Duchy of Lancaster cannot 
exhibit an information in the High Court of Justice {Attorney- General of the 
Duchy of Lancaster Y. Duke of Devonshire, 14 Q. B. D. 195)." 

„ 320, line 22. Agnew v. Vsher is now reported in 14 Q. B. D. 78. 

,, 324, line 31. Add — "Where a writ is issued against a firm and served on one 
member, who appears in his own name, but there is no service on or appear- 
ance by the other members, judgment cannot be signed against the firm for 
default of appearance {Adam v. Totvnend, 14 Q. B. D. 103)." 

„ 337, line 11. ^dff— " And see Drage v. Sartopp, W. N. (1885), 17." 

,, 357, line 22. ^<M—" In JSte^te v. Osmiwiow, now reported in 23 Ch. D. 119, it was 
held that where a plaintiff claims a definite sum made up of a number of 
items, he must give particulars of demand, though he will not be ordered to 
do so if he only claims an account." 

,, 374, line 52. Add— " Am. action may be dismissed for want of prosecution with- 
out costs, and there is no appeal in such case {Smiling v. Fulling, W. N. 
(1885), 13)." 

333, line 36. Add — " Commimications made by a solicitor to his client before the 
commission of a crime, for the purpose of being guided or helped in the com- 
mission of it, are not privileged from disclosure {The Queen v. Cox and 
Railton, 14 Q. B. B. 153)." 

398 line 32. Add — "Under an order directing an account, and not referring to 
settled accounts, the accounting party may set up settled accounts, though 
the order does not direct that settled accounts shall not be disturbed, and the 
opposite party may impeach them though the order does not expressly give 
him liberty to do so {Solgate v. Shutt, 28 Oh. D. 111)." 

„ 487, line 7. ^d*-" Varied on appeal, W. N. (1885), 10." 



Ix ADDENDA. 

Page 509, line 15. Add a reference to Dawson v. Fox, W. N. (1885), 11. 

„ 512, line 23. Ex parte Blease is now reported in 14 Q. B. D. 123. 

,, „ line 45. Add — "When a respondent has given notice that he will contend 
that the decision below should be varied, and the appellant subsequently 
withdraws his appeal, such notice entitles the respondent to elect whether 
to continue or withdraw his cross-appeal. If he continues it the appel- 
lant may give a cross-notice that he will bring forward his original con- 
tention on the hearing of the respondent's appeal [The Beeswinj, 10 
P. D. 18)." 

„ 516, line 28. Ex parte Ardeii is now reported in 14 Q. B. D. 121. 

„ 544, line 17. Add a reference to Fiiniess v. Davis, W. N. (1885), 14. 

„ 681, line 21. Add a reference to Ex parte Hasher, 14 Q. B. D. 82. 



STATUTES, ORDERS AID RULES 



EELATINO TO THE 



CHAJYCERY DiriSIOJV 

OF THE 

HiaS COURT OF JUSTICE. 



SOLIOITOES ACT, 1843. 6 & 7 Viot. 

u. 73, S8. 37-43 
6 & 7 VICT., Cap. 73, ss. 37—43. 

An Act for consolidatinp and amending several of the Laws relating 
to Attorneys and Solicitors practising in England wnd Wales. 

P2nd August, 1843.] 

XXXVU. And be it enacted, that from and after the passing of Solicitors to 
this Act no attorney or solicitor (a), nor any executor, administrator, and^not to ' 
or assignee (6) of any attorney or solicitor, shall commence or main- commence 
tain any action or suit (c) for the recovery of any fees, charges, or tui one month 
disbursements for any business done by such attorney or solicitor {d), after delivery, 
until the expiration of one month (e) after such attorney or solicitor, 
or executor, administrator, or assignee of such attorney, or solicitor, 
shall have delivered (_/) unto the party to be charged therewith, or 
sent by the post to or left {g) for him at his counting-house, office of 
business, dwelling-house, or last known place of abode, a biU (A) of 
such fees, charges, and disbursements, and which bill shall either be 
subscribed (i) with the proper hand of such attorney or solicitor (or, 
in the case of a partnership, by any of the partners, either with his 
own name or with the name or style of such partnership), or of the 
executor, administrator, or assignee {k) of such attorney or solicitor, 
or be enclosed in or accompanied by a letter subscribed in like manner 
referring to such bUl (Ji) ; 

And upon the application of the party chargeable (/) by such biU Reference of 
within such month it shall be lawful, in case the business contained ; ;. ■^"^ther 
in such biU or any part thereof shall have been transacted in the High business 
Court of Chancery (m), or in any other Court of Equity, or in any Court ot no? 
matter of bankruptcy or lunacy, or in case no part of such business for taxation.' 
shall have been transacted in any Court of Law or Equity {m) for the 
Lord High Chancellor or the Master of the Eolls {m), and in case any 
part of such business shall have been transacted in any other Court, 
for the Courts of Queen's Bench, Common Pleas, Exchequer (m), 
Court of Common Pleas at Lancaster, or Court of Pleas at Durham, 
or any judge of either of them, and they are hereby respectively 

M. B 



2 SOLICITORS ACT, 1843. 

6 & 7 Vict, required to refer (ra) such, bill, and the demand of such, attorney or 
c. 73, ss.37-43 solicitor, executor, administrator, or assignee, thereupon to be taxed 
and settled by the proper officer of the court in which such reference 
shaU. be made without any money being brought into court ; and the 
Court or judge makiag such reference shall restrain such attorney or 
solicitor, or executor, administrator, or assignee of such attorney or 
solicitor, from commencing any action or suit touching such demand 
pendiag such reference ; 
Taxation after AiTD in case no such application as aforesaid shall be made within 
such month as aforesaid, then it shall be lawful for such reference to 
be made as aforesaid, either upon the application of the attorney or 
' solicitor, or the executor, administrator, or assignee of the attorney or 
solicitor, whose bill may have been so as aforesaid delivered, sent, or 
left, or upon the application of the party chargeable by such bUl, 
with such directions and subject to such conditions as the Court or 
judge making such reference shall think proper (o) ; and such Court 
or judge may restrain such attorney or solicitor, or the executor, 
admiaistrator, or assignee of such attorney or solicitor, from com- 
mencing or prosecuting any action or suit touching such demand 
pending such reference, upon such terms as shall be thought 
proper {p) : 
Taxation after Peovtded always, that no such reference as aforesaid shall be 
ver , 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 {q) for the recovery of the demand of such 
attorney or solicitor, or executor, administrator, or assignee of such 
or after twelve attorney or solicitor, or after the expiration of twelve months after 

BpeoiaUir^ ^^ ^^"'^ ^^^ ®^^^ -^^^^ ^^^^ delivered, sent, or left as aforesaid, except 
cumstances. under special circumstances {r), to be proved to the satisfaction of the 
OoTirt or judge to whom the application for such reference shall be 
made ; and upon every such reference, if either the attorney or soli- 
citor, or executor, administrator, or assignee of the attorney or soli- 
citor, whose bin shall have been delivered, sent, or left, or the party- 
chargeable with such bUl, having due notice shall refuse or neglect to 
attend such taxation, the officer to whom such reference shall be" made 
may proceed to tax and settle such biU and demand ex parte ; 
Payment of And in case any such reference as aforesaid shaU be made upon the 

tion! °* ^^^^' application of the party chargeable with such bill, or upon the appli- 
cation of such attorney or solicitor, or the executor, administrator, or 
assignee of such attorney or solicitor, and the party chargeable with 
such bill shall attend («) upon such taxation, the costs of such reference 
shall, except as hereinafter provided for, be paid according to the event 
of such taxation ; that is to say, if such biU when taxed be less by a 
sixth part than the bill delivered, sent, or left, then such attorney or 
solicitor, or executor, administrator, or assignee of such attorney or 
solicitor, shall pay such costs ; and if such biU when taxed shall not be 
less by a sixth part than the bill delivered, sent, or left, then the party 



SOLICITORS ACT, 1843. 3 

chargeable witli such bill, making such, application or bo attending, 6 & 7 Vict. 
shaU pay such costs (t) ■ and every order to be made for such reference "• '^^' ^^- ^^'^^ 
as aforesaid shall direct the officer 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 to be due to 
or from such attorney or solicitor, or executor, administrator, or assignee 
of such attorney or solicitor, in respect of such bill and demand, and 
of the costs of such reference if payable: Provided also, that such 
officer shall in aU cases be at liberty to certify specially any circum- 
stances relating to such biU 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 taxation : 
Provided also, that where such reference as aforesaid shaU. be made 
when the same is not authorised to be made except under special cir- 
cumstances, as hereinbefore provided, then the said Court or judge 
shall be at liberty, if it shall be thought fit, to give any special direc- 
tions relative to the costs of such reference : 

Pbovxded also, that it shall be lawful for the said respective Courts Court may 
and judges, in the same cases in which they are respectively authorised t^ deliver his 
to refer a bOl which has been so as aforesaid delivered, sent, or left, to l>ill> and to 
make such order for the delivery {u) by any attorney or solicitor, or the ^elTSo. 
executor, administrator, or assignee of any attorney or solicitor, of such 
bin as aforesaid, and for the delivery (m) up of deeds, documents, or 
papers in his possession, custody, or power, 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 had been transacted in the Court in which such order 
was made : 

Pbovtded Also, that it shall not in any case be necessary in the first Evidence of 
instance for such attorney or solicitor, or the executor, administrator, {jju_ ^ 
or assignee of such attorney or solicitor, in proving a compliance with 
this Act, to prove the contents of the biU he may have delivered, sent, 
or left, but it shall be sufficient to prove that a biU of fees, charges, 
or disbursements, subscribed in the manner aforesaid, or enclosed in 
or accompanied by such letter as aforesaid, was delivered, sent, or left 
in manner aforesaid ; but nevertheless it shaU be competent for the 
other party to show that the bill so delivered, sent, or left, was not 
such a biU as constituted a bond, fide compliance with this Act. 

It shall be lawful for any judge of the superior Courts of law and Power to 
eqtiity to authorise an attorney or solicitor to commence an action or aotion"before ' 
suit for the recovery of his fees, charges, or disbursements against the expiration of 
party chargeable therewith, and also to refer his bill of fees, charges, ™ega?prao. 
and disbursements, and the demand of such attorney and solicitor titioners Act, 
thereupon, to be taxed and settled by the proper officer of the Court in ^*^^' ^- 2- 
which such reference shall be made, although one month shaU not 
have expired from the delivery of the bill of fees, charges, or disburse- 
ments, on proof to the satisfaction of the said judge that there is pro- 

b2 



SOLICITORS ACT, 1843. 



6 & 7 Vict. baWe cause for believing that the party chargeable therewith is about 
c. 73, Ba. 37-43 ^^ ^^j^ England or to become a bankrupt or a liquidating or com- 
pounding 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 (»). 



Short title. 

" Attorney 
or solicitor." 



General juriS' 
diction over 
solicitors. 



Action for 
account and 
taxation. 



Non-deliverjr. 

Remedies of 
solicitor. 



" Business.' 
"Month." 



What is " de- 
livery." 



The Act is now called " The Solicitors Act, 1843 ; " see The Solicitors Act, 1877, 
40 & 41 Vict. c. 25, s. 1. 

(a) Attorneys and solicitors are now styled " Solicitors of the Supreme Court" 
(Judicature Act, 1873, s. 87) ; and see Judicature Act, 1875, s. 14, and Judicature 
Act, 1881, B. 24, infra, as to power of adapting enactments to solicitors of the 
Supreme Court. 

As to the general jurisdiction over solicitors, see Cowdell v. Neale, 1 C. B. N. S. 
332 ; Hx parte Lord Camdross, 5 M. & W. 645 ; Ex parte Arrowsmith, 13 Ves. 126 ; 
iS« Forsyth, 34 Beav. 140 ; on appeal, 2 De G-. J. & S. 609 ; 13 W. R. 932 ; 12 L. T. 
687 ; Judicature Act, 1873, s. 87. 

The Act should be construed liberally for the client {MngUheart v. Moore, 15 M. 
& W. 548 ; Maddeford v. Austwiek, 3 M. & Cr. 423 ; Williams v. Griffiths, 10 M. 
ftW. 125). 

The summary jurisdiction given by the Act does not exclude the right of a client 
to bring an action against his solicitor for an account [Morgan v. Siggins, 5 Jur. 
N. S. 236 ; lyddon v. Moss, 4 De G. & J. 104 ; O'Brien v. Lewis, 9 Jur. N. S. 321) ; 
or to enforce an agreement for delivery by petition [Re Bailey, 34 Beav. 392). But 
a cestui que trust, out of whose property the bills have been paid, cannot sue the 
solicitors of the trustees for an account and taxation of the bills {In re Spencer, 
Spencer v. Mart, 30 "W. R. 296; W. N. (1881), 170). 

(i) An assignee in bankruptcy was held to be within the Act (He Walton, 4 K. & 
J. 78) ; and see Ingle v. M'Outchan, 12 Q. B. D. 518, and note (A), infra, p. 5. 

[c) As to pleading non-delivery, see Lane v. Glenny, 7 Ad. & Ell. 83 ; Morgan v. 
Btiddock, 10 Dowl. Pr. Ca. 311 ; Hitchins v. Tate, 7 C. B. 875 ; Flower v. Newton, 
11 Jur. 875. 

A solicitor may set ofi a bill before delivery [Lester v. Lazarus, 2 C. M. & R. 665 ; 
Broum v. Tibbits, 31 L. J. C. P. 406 ; 10 W. R. 465) ; or prove in bankruptcy 
[Ex parte Prideaux, 1 Gl. & Jam. 28 ; and see Ex parte Dewdney, 2 Rose, 69 ; Ex 
pa/rte Steele, 16 Ves. 166) ; or sue on a promissory note or other collateral agreement 
[Jeffreys v. Evans, 14 M. & W. 210 ; 14 L. J. Ex. 363 ; Re Moss, 17 Beav. 346 ; 
Thomas v. Cross, 10 Jur. N. S. 1163 ; 13 W. R. 166). But he cannot recover on an 
account stated in respect of a bill of costs, unless the bill has been duly delivered 
[Brooks V. Bockett, 9 Q. B. 847). In Waugh v. Waddell, 16 Beav. 621, it was held 
that pending a reference for taxation a solicitor could not by suit enforce a charge 
for costs given him by a married woman on her separate estate ; see this case com- 
mented on in Thomas v. Gross. After taxation, an action by the solicitor on his bill 
is a contempt [Re Campbell, 3 De G. M. & G. 686). 

A solicitor has no statutory right to have the amount of his charges ascertained 
by taxation Only [Ex parte Ditton, Re Woods, 13 Ch. D. 318 ; 28 W. R. 408 ; 42 
L. T. 161 ; where a solicitor who tendered a proof in the bankruptcy of his client 
in respect of costs due to him, was held not entitled to have his bUl referred for 
taxation, as the registrar had jurisdiction to determine the amount due, availing 
himself, if necessary, of the advice of the taxing master). 

[d) These words only include business done in the character of solicitor, see 
note [t), infra, p. 8. 

[e) A calendar month is meant (s. 48 of the Act ; Ryalls y. Reg., 12 Jur. 468). 
It is to be calculated exclusively of the days on which the biU is delivered and the 
action brought [Bltmt v. Meslop, 8 Ad. & EU. 577). 

(/) As to what constitutes delivery, see Eggington v. Oumberlege, 11 Jur. 932 ; 
Welsh V. Sihvell, 11 Jur. 471 ; Blaiidy v. De Burgh, 6 C. B. 623 ; Bunn v. Sales, 
1 E. & F. 174 ; Phipps v. Baubney, 16 Q. B. 614 ;' Gfridley v. Austen, 16 Q. B. 604, 
611 ; Spier v. Bernard, 8 L. T. 396 ; Flower v. Newton, 11 Jur. 875 ; and in the case 
of a public officer, see Champ v. Stokes, 6 H. & N. 683 ; 7 Jur. N. S. 607 ; and in 
that of the committee of a public company, Edwards v. Lawless, 6 Rly. Ca. 357 ; 
Mant V. Smith, 4 H. & N. 324 ; Blandy v. Be Burgh ; Phipps v. Baubney. Delivery 
to a duly authorised agent of the client is sufficient [Re Bush, 8 Beav. 66), or, semble, 
to his servant [M'Gregor r. Keily, 3 Exoh. 794) ; but a delivery to his solicitor, or 
to a friend or relation [Gridley v. Austen, 16 Q. B. 504, 611 ; Re Abbott, 4 L T 
676), is not. The bill may be sent by post [Roberts v. Lucas, 11 Exch. 41), and in 
such a case it is enough if the envelope and a signed letter accompanying it be 
addressed to the party chargeable [ibid.; Taylor y. Hodgson, 3 D. & L. 115; and 



SOLICITORS ACT, 1843. 5 

see Manning v. Glyn, \ Jones, Ir. Ex. Eep. 513). Where the action -was brought 6 & 7 Viot. 
against the executors of the client, a delivery to the client himself in his lifetime o. 73 sa. 37-43 

was held enough [Reynolds v. Caswell, i Taunt. 193, under the 2 Geo. 2, o. 23 ; see, 1 ! '. 

too, Tate v. Kitchens, 7 G. B. 875). Where clients were liable on a joint contract, 
delivery of the bill to one of them was held sufficient [Mant v. Smith). As to the 
mode of enforcing the order, see note («), infra. 

ig) The bill must be left, not merely shown {Fhipps v. Bauhney, 16 Q. B. 514; " Sent or 
Crowded- v. Shee, 1 Camp. 437). left." 

(A) The bfll, or some accompanying document [Taylor \. Bodgson, 3 B. & L. 115 ; poim of ^jjn 
Moberts v. Lucas, 11 Exch. 41), must specify the persons to be charged [Gridley v. -f pastn 
Austen, 16 Q. B. 504 ; Champ v. Stokes, 6 H. & N. 683), the Court in which the 
business was done [Lewis v. Primrose, 6 Q. B. 265 ; Dimes v. Wright, 8 C. B. 831), 
the name of the cause [Keene v. Ward, 13 Q. B. 515), and the particular items 
charged for [Drew v. Clifford, 2 C. & B. 69 ; Se Smith, 4 Beav. 309 ; Fhilbyv. Scale, 
8 C. B. N. S. 647 ; Se Fender, 10 Beav. 390 ; Re Tilleard, 32 Beav. 476 ; Pilgrim v. 
Sirschfeld, 12 W. E. 51 ; Wilkinson v. Smart, 24 W. R. 42) ; and as to specifying 
the number of foKos in deeds, see Re Foster, 2 De Gt. P. & J. 105. 

As a general rule, it is sufficient if the biU gives such information as will enable 
the client to obtain advice as to the taxation [Saigh v. Ousey, 7 Ell. & Bl. 578 ; 
Cook V. Gillard, 1 Ell. & Bl. 26 ; Frowd v. Stillard, 4 C. & P. 51 ; Sargent y. Gannon, 

7 C. B. 742) ; and it need not be drawn in the technical form of a debtor and cre- 
ditor account [Holmes v. Magrath, 5 Ir. Law Rep. 376). 

(t) An unsigned bill accompanied by a signed letter referring to the bills is suf&- Unsigned bill, 
dent [Re Bush, 8 Beav. 66 ; Bmley v. Anstruther, 52 L. J. Ch. 367 ; 48 L. T. 665 ; 
W. N. (1883), 48). An unsigned bill of costs may be referred to taxation by the Client may 
party chargeable if he chooses to waive the irregularity [Re Fender, 8 Beav. 299 ; on -vraive irregu- 
appeal, 2 Phil. 69 ; Re Gedye, 14 Beav. 56 ; Re Foster, 2 De G. P. & J. 105) ; but he larity. 
is not bound to do so [Billing v. Coppock, 1 Exch. 14). 

(A) The words of the Act are satisfied by an unsigned bill being sent enclosed "j^Baignge » 
with a letter referring to the bill, and signed by a new firm of solicitors who have ° 

taken over the business and debts of an old firm, some of the business charged for 
having been done by the old firm and some by the new [Fenley v. Anstruther, 52 
L. J. Ch. 367 ; 48 L. T. 665 ; W. N. (1883), 48). 

(?) A married woman having separate estate, which she has by agreement made Who, as party 
liable [Waugh v. Waddell, 16 Beav. 521 ; and see Re Pugh, 17 Beav. 336 ; Mwrrayv. chargeable, 
Barlee, 3 M. & K. 209 ; Fenley v. Anstruther ; and the Married Women's Property may apply for 
Act, 1882, infra) ; the next friend of an infant [Re Fluker, 20 Beav. 143 ; Re Flower, taxation. 
19 W. R. 578) ; the executors [Jefferson v. Warrington, 7 M. & W. 137); or trustee in 
bankruptcy [Clarkson v. Parker, 7 Dowl. 87 ; but see Re Elmslie % Co., 9 Eq. 72), of the 
party originally liable, are parties chargeable within the Act ; but an insolvent is not 
(JJe Salsall, II Beav. 163; and see Re Leadbitter, 10 Ch. D. 388) ; nor an outlaw 
[Re Mander, 6 Q. B. 867) ; but see ReSeritage, Hx parte Docker, 3 Q. B. D. 726 ; 47 
L. J. Q. B. 509 ; 26 W. R. 633 ; 38 L. T. 509 ; Re Simpson, W. N. (1878), 214 ; and 
the cases cited in note [w), infra, p. 10). A party in contempt is not incapacitated 
from applying [Newton v. Ricketts, 11 Beav. 67). As to enforcing payment by a 
married woman of a biU of costs which she has taxed, see Re Peace and Waller, 24 
Ch. D. 405. Where several persons are jointly chargeable, they should concur in Persons 
the application [Re Lewin, 16 Beav. 608 ; Ex parte Mobbs, 8 Beav. 499 ; Re Perkins, jointly 

8 Beav. 241) ; and an order obtained by one of them alone on an allegation that he chargeable, 
alone employed the solicitor, wiU be discharged as irregular [Re Perkins ; Re Ilder- 

ton, 33 Beav. 201) ; and see Re Tetta, 33 Beav. 412. But it seems that if one of the 
parties so liable refuses to concur, the order may be obtained by the other [Lockhart 
V. Sardy, 4 Beav. 224 : Ee Hair, 10 Beav. 187). In Re Colquhoun, 5 De G. M. & 
G-. 35 ; 23 L. J. Ch. 515, taxation was ordered on the application of one party, the 
retainer having been separate. See, too, Re Stephen, 2 Ph. 562 ; 17 L. J. Ch. 
219 

As to the cases in which security for costs will be required from the person apply- Securi^ f or 
ing, see Re Pasmere, 1 Beav. 94 ; ReDolman, 11 Jur. 1095 ; Fx parte Foley, 11 Beav. costs of taxa- 
456 ; Murrow v. Wilson, 12 Beav. 497 ; Re Waugh, 15 Beav. 508. _ tion. 

Overseers of the poor are bound to have a solicitor's bill taxed before they pay it ; y^o must 
and in case of neglect the payment may be disallowed [Re Overseers of Napton, 27 apply. 
T T ^O S \ 124^ 

The client obtaining the order for taxation has to undertake to pay what shall be Undertaking 
found due, and may have to pay charges which could not have been actively re- to pay. 
covered by the solicitor; see ife/owes, 9 Eq. 63; JJ«.B?»i»««# «).,i*«^_ 72. "TTiVh Court 

[m) The Court of Chancery is now the Chancery Division of the High Court of . pu°,t,„^™ ,. 
Justice ; and the Courts of Queen's Bench, Common Pleas and Exchequer, have oi "^^laiii-eiy, 
become the Queen's Bench Division of the High Court ; see Judicature Act, 1873, 
B. 31, as modified by Order in Council of December 16, 1880. „„•«»• j. ax. 

By the Judicature Act, 1881 (44 & 45 Vict. o. 68), s. 2, the Master of the RoUs Master of the 



SOLICITORS ACT, 1843. 



6 & 7 Viot. 
B. 73, ss. 37-43 



Wliere orders 
for taxation 
may be ob- 
tained. 



Busiaess done 
in no Couit. 



Solicitor's 
agent's bill. 

Order before 
twelvemonths 
ex parte and of 
course. 



Order to 
continue. 



Special appli- 
cation is 
necessary, 
(1) If part 
only of a bill 
is to be taxed. 



(2) Wliere 



ceased to be a judge of the High Court, but continues to be a judge of the Court of 

^s to the Court of Common Pleas at Lancaster and the Court of Pleas at Durham, 
see Judicature Act, 1873, a. 16. , ■, •. ■ j j iv. 

An order for taxation of costs in any Court may now be made by any judge ot tne 
High Court of Justice, the jurisdiction conferred by this section bemg transferred by 
sect. 16 of the Judicature Act, 1873, to the judges of the High Court {per J essel.M.B,. 
in Be Worth, 18 Ch. D. 521 ; 50 L. J. Ch. 262 ; 29 W. R. 371 ; 44 L. T. 462, 
where it was held that costs as between solicitor and client m a County Court action 
where the claim exceeded 20?. might be taxed in the Chancery Division). Perhaps, 
too, an order for taxation of costs for business done in no Court, or in any matter of 
bankruptcy or lunacy, might now be obtained elsewhere than in the Chancery Divi- 
sion : see Judicature Act, 1873, s. 87 ; Se Simpson, W. N. (1878), 214 ; see, however, 
Judicature Act, 1873, s. 34 (2) ; DanieU, 2017. As to the scale of charges to be 
aUowed, see R. S. C. 1883, Ord. LXV. rr. 8, 9, 10, infra. 

The following descriptions of charges were held to be for busiaess done m no 
Court and therefore taxable in Chancery : — . 

Charges for Parliamentary business (the equitable jurisdiction not bemg taken 
away by the House of Commons Costs Taxation Act, 1847, 10 & 11 Vict. c. 69, or 
the House of Lords Costs Taxation Act, 1849, 12 & 13 Vict. c. 78 ; Se SlrotAer, 
3 K. & J. S18 ; JRe Sudhw, 11 Beav. 400 ; Se Osborne, 25 Beav. 353) ; for obtammg 
an order at chambers for leave to enter up satisfaction on a bond given to the Crown 
(Re Gaitskell, 1 Ph. 576) ; for obtaining a married woman's acknowledgment {Bx 
parte Branson, i Scott, 539) ; for business done in the Court of a revising barrister 
{Se Andrews, 17 Beav. 610). Where a solicitor was appointed returning ofBoer for 
the election of a school board and sent in his bill of expenses in the usual form of a 
bill of costs, it was held the biU could be taxed {Se Jones, 13 Eq. 336) ; and see 
Wombwell v. Corporation of Barnsley, 36 L. T. 708. 

Where the solicitor retained his bill and refused to produce it, it was assumed 
that the Court had jurisdiction {Se Zoughtorough, 23 Beav. 439). 

The rule in the Court of Chancery was, that though, in general, the application 
need not be made to that branch of the Court which heard Qie suit {Robins v. Mills, 
1 Beav. 227 ; Se JElmslie, 12 Beav. 538 ; Bingham v. Hallam, 9 L. J. Ch. 104), it 
was otherwise when the merits of the case entered into the question ( Webb v. Qraee, 
12 Beav. 489). 

A solicitor may have his agent's bill taxed under the statute {Toghill v. Grant, 2 
Beav. 261 ; Se Smith, 4 Beav. 309, and see note {t), p. 8, as to the items to be 
included). 

(«) Orders of course, for delivery and taxation, may now be issued by any of the 
chief clerks in the Chancery Division {Mem. W. N. (1880), 7) ; and for forms of 
orders to refer bills for taxation, see Seton, 604 seq. In the absence of special 
circumstances the order maybe obtained ex parte and as of course before twelve months 
have elapsed from delivery {Solland v. Gwyrwie, 8 Beav. 124 ; Seton, 607) ; and on an 
application for taxation within the month the Court has no discretion to refuse to 
make the order, it is bound to make it {JSx parte Jarman, 4 Ch. D. 835). The costs 
of a special appUoation may be refused where an ex parte application would have 
been sufficient {Se Bignoli, 9 Beav. 269) ; and see Re Taylor, 15 Beav. 145 ; Re 
Atkinson, 26 Beav. 151 ; Re Adamson, 18 Beav. 460. ; Re Lett, 31 Beav. 488 ; Be 
Cattlin, 8 Beav. 121 ; Re Braeey, ibid. 338. 

If either party dies an order to continue the proceedings may be obtained on an 
ex parte application (R. S. C. 1883, Ord. XVII. r. 4; Se Waugh, 29 Beav. 666 ; Re 
Nicholson, 29 Beav. 665 ; Se Whalley, 20 Beav. 876). 

An order of course, though right on the merits, will be discharged if obtained in 
a case where a special application was necessary {Sarris v. Start, 4 M. & C. 261 ; 
Grove v. Samsom, 1 Beav. 297 ; Gregg v. Taylor, 1 Beav. 123). 

An order of course was held not irregular merely because the solicitor had com- 
menced an action for his costs (Be Farington, 33 Beav. 346), though after final 
judgment given in an action, the Court has no jurisdiction ; see note (j), infra. So 
where the solicitor had set up his bill in defence to an action, but the bUl had not 
been gone into, this was held to be no reason for requiring a special application in 
Chancery for taxation {Re David, 30 Beav. 278). 

A special application is necessary imder the following circumstances : — 

(1) If the application is to tax only part of the bUl claimed by the solicitor {Re 
Law, 21 Beav. 481 ; Se Byrch, 8 Beav. 124, followed in Mx parte Jarman, 4 Ch. D. 
835-; Se J3alby, 8 Beav. 469 ; Re Wavell, 22 Beav. 634 ; Stolces v. Trumper, 2 K. & J. 
232 ; but see Re Fkiker, 20 Beav. 143 ; Se Binton, 16 Beav. 192 ; Re Yetts, 33 Beav. 
412) ; or the application is made by some only of several parties jointly liable {Re 
Serkins, 8 Beav. 241 ; Se Ilderton, 33 Beav. 201 ; Se Kitton, 35 Beav. 369) ; secus, 
where they are severally liable {Se Sair, 10 Beav. 187). 

(2) Where the professional employment or retainer is disputed {Se Mldridge, 12- 



SOLICITORS ACT, 1843. 7 

Beav. 387 ; Se Thurgood, 19 Beav. 51 ; and see Gillow v. Rider, 15 C. B. 729 ; JSe g & 7 Viot. 
Inderwick, 25 Oh. D. 279) ; but a special appUoation need not be made because the o. 73, bs. 37-43 

client considers some of the proceedings to have been unnecessary — the taxing 

master will go into these questions [Se Atkinson, 26 Beav. 153); and see as to retainer is 
retainer being joint or several, Re Allen, Davies v. Chatwood, 11 Ch. D. 244. disputed. 

(3) Where there is a special agreement {Re W%nterhotham, 15 Beav. 80), e.g., to ,„> ^-1, 
give the soUoitor a Uen {Re Moss, 17 Beav. 59 ; and see Re Ransom, 18 Beav. 220 ; H' "'."^re 
Re Fisher, 18 Beav. 183 ; Ward v. £awson, 8 Ch. 65). A special agreement, re- ^" . f ^ 
spectmg some part of the costs, unless it goes to the whole bill, is not held now ^I?: '^siee- 
to be necessarily a bar to a common order for taxation, though it was formerly oou- "'™'- 
Bidered to be so {Re Eyre, 10 Beav. 569 ; 2 Ph. 367 ; and see Re Philp, 2 Giff. 35 ; 
Se Forsyth, 34 Beav. 140 ; Re Thompson, 14 L. T. 6) ; but there must be no sup- 
pression of the fact of such an agreement, or the order wiU be discharged {Re Ingle, 
21 Beav. 275 ; Re Carven, 8 Beav. 436 ; Re Holland, 19 Beav. 314). Under the old 
law an agreement to charge a fixed siuu in lieu of costs hereafter to be incurred was 
void; see Re Netmum, 30 Beav. 196; Fince v. Beattie, 11 W. B.. 979 ; Fhilby v. 
Sazle, 7 Jur. N". S. 125 ; but see as to an agreement to pay a soUoitor a fixed salary. 
Rush V. Martin, 33 L. J. Ex. 17 ; Galloway v. Corporation of London, 4 Eq. 90. Por 
the present law as to agreements between solicitors and their clients, see the 
Solicitors Act, 1870, 33 & 34 Vict. c. 28, ss. 4—15, infra, p. 20. 

Any irregularity in obtaining the order may be waived by the solicitor {Re Field, Irregulaiity 
16 Beav. 593 ; Re Wavell, 22 Beav. 634 ; Re Mair, 11 Beav. 96 ; Re Bevan, 12 W. E. in order 
196 ; Re Bartrum, ibid. 660). waived. 

Eor cases where a bUl might have been filed, see Re Forsyth, 34 Beav. 140 ; Ward 
V. Lawson, 8 Ch. 65 ; Rees v. Williams, L. E. 10 Ex. 200. 

(o) This application may be made ex parte. See note(»), and see also Re Gaitskell, Application 
1 Ph. 576 ; Re Fender, 2 Ph. 69. For forms of order under this clause, see Re after one 
Bromley, 7 Beav. 488 ; Re Becke, 5 Beav. 406 ; Re Field, 16 Beav. 593. month. 

(p) See note (c), supra. Under the present practice the order only restrains the 
commencement of proceedings {Re Field, W. N. (1877), 244). 

(?) See Re Barnard, 2 De G. M. & G. 359. But where judgment at law had gone Verdict a bar 
against the client iy default, but no writ of inquiry to assess the damages had been to taxation, 
executed, such judgment was held not to be a final judgment so as to prevent 
taxation in equity {S. C 16 Beav. 5). 

(r) Special applications are made by summons in chambers (R. S. C. 1883, Ord. After twelve 
LV. Pt. I. r. 2 (15) ). months. 

Twelve mouths after delivery, even an unsigned bill can only be taxed under Special cir- 
special oircumstanoes {Re Gedye, 14 Beav. 56), which may be matters appearing on cumstanoes. 
the face of the bUl {Re Robinson, L. E. 3 Ex. 4), so that to entitle a oUent to taxa- 
tion after twelve months he must show either "pressure accompanied by some 
overcharge," or, "gross overcharge amounting to fraud" {Re Strother, 3 K. & J. 
528 ; Re M'Kay, 15 h. T. 101) ; mere overcharge, not amounting to fraud, is not 
enough {Re Harle, 17 W. E. 21 ; 19 L. T. 306). 

But as to taxation after twelve months in cases where there is an order to tax 
outside the Act, see Fx parte Blair, 5 Ch. 482 ; De Bay v. Gr^n, 10 Ch. 291. 

As to what circumstances constitute such pressure or fraudulent overcharge, see Pressure and 
note {g) to sect. 41, infra, on " application to tax after payment " on which appU- overcharge, 
cations the question more frequently arises {Re Williams, 15 Beav. 417). 

The Court will require the delay to be accounted for. Thus, a dispute and cor- Othergrounds 
respondence as to alleged omissions in the biU were held to be a sufficient apology accounting for 
for the lateness of the application in Re Bagshawe, 2 De G. & Sm. 205 ; and see Binns the delay. 
V. Sey, ID.&li. 661 ; 13 L. J. Q. B. 28 ; but the circumstance that the solicitor 
was suing at law for his fees {Bennett v. Sill, 21 L. T. (0. S.) 101), or that he had 
possession of the papers in the suit {Re Gedye, 14 Beav. 66 ; Sayer v. Wagstaff, 5 
Beav. 415 ; Re Fugh, 32 Beav. 173 ; 1 De G. J. & S. 673), was not. 

"Where a solicitor has been retained for a particular business, his bUl of costs for Where there 
carrying it through generally constitutes one bUl [Stokes v. Trumper, 2 K. & J. 232 ; are successive 
and see Re Feaeh, 2 D. & L. 33). But successive bills of costs in such matters as bills, the last 
bankruptcy, administration, and winding-up, are not necessarily to be treated as only delivered 
one bill brought down to the daU of the latest delivery {Re Sail and Barker (Jessel, M.E.) within the 
9 Ch. D. 538 ; 47 L. J. Oh. 625 ; 26 W. E. 601) ; and see Re Cartwright (Selbome, year. 
L.C.) 16 Eq. 469, where, however, under the circumstances, taxation of a series of 
biUs, most of them delivered more than twelve months, was directed {Re Street, 10 Oo^ynTjance 
Eq. 165). The continuance of the relation of solicitor and client after delivery has ^^ relation of 
been considered a material circumstance {Re Nicholson, 3 De G. F. & J. 93 ; Mx _.i,--:i.._ ._ j 
parte Flower, 18 L. T. 467 ; 8. C. nom. Re F-, 16 W. E. 749) ; but in Re Elmslie S; '^g°t '^ *'''' 
Co., 16 Eq. 326; 42 L. J. Ch. 570 ; 28 L. T. 731, this alone was held not sufficient ; 
and see Re Cartwright. , , .„ ^ i- -nn, v x 

So where a client has not had proper opportunity to examine the biU, taxation wnere cUent 
after twelve months has been aUowed {Re Williams, 15 Beav. 417, where the bill has not had 



SOLICITORS ACT, 1843. 



6 & 7 Vict. 
0.73,88.37-43 

opportunity 
to esamiue. 

Laches and 
acquiescence. 

Limits of 
taxation. 

Winding-up 
order. 



Where party 
chargeable 
does not 
attend. 

Costs of 
taxation. 

Items to he 
included. 

Disburse- 
ments. 



Taxation of 
agency bills. 



Ho alteration 
after refer- 
ence to 
master, ex- 
cept by leave 
of Court. 



Nor any time 
after delivery, 
unless under 
special cir- 
cumstances. 

Bule as to 
one-sixth. 



was delivered just as the client was going abroad) ; but the chent must show that there 
has been no undie laches or acquiescence on his part, that the special circumstances 
are such as he could not with reason have availed himself of sooner {Se MarnarU, 
2 De G. M. & G. 359 ; but see He Strother, 3 K. & J. 518). Tor cases where If pse of 
time and laches have been a bar to taxation, see Ee Vtnes, 2 De G. m. & tr. mi-, 
Slagrave v. Mouth, 8 De G. M. & G. 620 (where the application was by bill). And 
see note (A), p. 13, «osi. _ i-j.it. 

In ordering taxation after twelve months the Court wiU. if necessary, restrict the 
taxation within certain limits (JJe NiohoUon, 3 De G. F. & J. 93). Compare AlUn v. 
Jarvis, 4 Ch. 616. . ,. a j t.-ii 

A bin taxable in point of time at the date of a wmdmg-up order, and a bm 
subsequently deUvered to the official Uquidator, must both be taxed before payment, 
although twelve months may have elapsed since delivery of the second bill, the 
effect of the winding-up order being to suspend the operation of the twelve months 
rule (Ex parte Evans, 11 Eq. 151 ; and see Se James, 4 De G. & Sm. 183). 

(«) Solicitors proceeding under the common order for taxation (which follows tbe 
words of the statute) must, in any event, pay the costs of the reference themselves 
if the party chargeable does not attend the taxation {fie Vppertm, 30 W. R. 840). 

(*) It is important with reference to the costs of taxation to consider what items 
included by the solicitor in his bill wiU be allowed him on a reference for taxation. 

Only those payments are allowed on taxation which are made by the sohcitor m 
his professional capacity ; see the certificate of the taxing-masters in Re Remnant, 
11 Beav. 603 ; and for the taxing-master's discretion as to the amount, see Ee Page, 
32 Beav. 487. Other disbursements should be included in a separate account ; but 
see Waring v. Williams, 2 Beav. 1. Payments made to counsel for business have 
been held professional disbursements {FranUm v. Eeatherstonhaugh, 1 Ad. & Ell. 
478) ; even when the oKent appropriated a special sum for such payment, leaving 
the solicitor no discretion [Re Bedson, 9 Beav. 6 ; but see Re Metcalfe, 30 Beav. 406 ; 
Daniell, 2032). Cash pajrments made by the solicitor in proceedings where he was 
not professionally concerned are not allowed to be included {Bemming v. Wilton, 4 
C. & P. 318 ; Prothero v. Thomas, 6 Taunt. 196 ; Re Zees, 5 Beav. 410) ; and see 
latham v. Mi)de, 1 Cromp. & Mees. 128 ; Feame v. Wilson, 6 B. & Cr. 86. Thus 
the fees of a.solicitor acting as steward to a manor, are not professional disburse- 
ments {Allen V. AMridge, 6 Beav. 401) ; but business done by a solicitor " retained 
to act as electioneering agent, and to advise and assist the committee," may be 
included (iJe Osborne, 25 Beav. 353 ; 4 Jur. N. S. 296). Compare iJe Oliver, 16 W. R. 
331 ; 36 L. J. Ch. 261. 

As to the power of the taxing-master to disallow items caused by the soUoitor's 
negligence, see Re Massey and Carey, 26 Ch. D. 459. 

A solicitor may apply for taxation of his agent's bill of costs (see p. 6, arete,) and 
though agency- business includes many transactions it maybe taxed in one bill, 
generally on the terms of the applicant paying a sum of money into Court (Billing 
V. Coppoc/c, 1 Exch. 14 ; Smith v. Dimes, 4 Ex. 32 ; Re Smith, 9 Beav. 342 ; Jones v. 
Roberts, 8 Sim. 397 ; Marvey v. Mayhew, 2 W. R. 128) ; and see Re Bowen, 41 
L. J. Ch. 327 ; 20 W. R. 396. 

After the bill has been referred for taxation under this statute (see Davis v. Earl 
of Dysart, 21 Beav. 124 ; 8DeG. M. &G. 33), no alteration can be made in it (a«ys v 
Trotter, 5 B. & Ad. 1106 ; Re Wells, 8 Beav. 416 ; Re Oatlvn, 18 Beav. 519), except by 
consent, or on a special application for leave to amend {Re Andrews, 1 7 Beav. 510,614). 
Thus leave was given to amend by inserting omitted items, and increasing under- 
charges (see, however. Re Tilleard, 32 Beav. 476) ; but not to decrease overcharges 
{Re Whalley, 20 Beav. 576), nor to withdraw items improperly inserted {Re Carven, 
8 Beav. 436 ; Re Jones, ibid. 479 ; Re Blakesly, 32 Beav. 379). 

So a solicitor, whose biU was referred for taxation, was not allowed to have a 
previous bill against the same client, which he had retained, included in the taxa- 
tion, for the purpose of saving costs of taxation {Re Gregg, 30 Beav. 259) ; but it 
has been doubted whether under an order for a general taxation, a solicitor can 
have items included which have been taxed and paid under a previous particular 
taxation [Tarbuck v. Tarbuek, 4 Beav. 149 ; and see Ex parti QuiUer, 4 De G. & Sm. 
183). 

As soon as a solicitor has delivered his bill he is bound by it, and cannot substitute 
a second biU for it, even before notice of an order to tax is served on him ; and 
unless there are very special reasons he must abide by the bill as delivered {Re 
Heather, 5 Ch. 694 ; 39 L. J. Ch. 781 ; 18 W. R. 1079 ; In re Holroyde, 29 W. B. 
599 ; 43 L. T. 722 ; W. N. (1881), 6; Re Chambers, 34Beav.l77; 13 W. B. 375), 

The rule as to one-sixth is imperative in an ori^nary reference to taxation (Re 
Woollett, 12 M. & W. 504; and see Higgins v. WoolcoU, 5 B. & C. 760). Where 
the reference is special, or the master has certified specially, the statute makes an 
exception, and the costs of the reference are in the discretion of the judge. 

Where in a suit against a solicitor for a general account, more than one-sixth was 



SOLICITORS ACT, 1843. 9 

taken off in the suit outside the taxation, but less than one-sixth on the taxation, 6 & 7 Viot. 
the Court allowed the solicitor the costs of the taxation {May v. Mggmdm, 24 Beav. o. 73, sa. 37-43 

207). Where taxation -was directed pending an action for the costs, and more than ' 

one-sixth was taken off, the Court ordered the costs of the reference to be paid by 
the solicitor, and the costs of the action by the client {fie Eair, 11 Beav. 96). See 
contra, before the Act, Toghill v. Grant, 6 Beav. 348. As to the costs of taxation 
of several bills, see Meardsall y. Cheetham, 31 L. T. (0. S.) 118 ; JSx parte Barrett, 3 
D. & Ch. 731 ; Hx parte Fullen, W. N. (1883), 20. 
_ When more than one-sixth is taken off the bill of an insolvent or bankrupt soli- Where 
oitor, see as to the costs of the taxation lie Feers, 21 Beav. 620 ; Be Telle, 25 Beav. solicitor is 
861 ; He Cole, 2 Sim. & St. 463 ; Whalley v. WiUiamson, 6 Man. & Gr. 269 ; Se Bar- bankrupt. 
trum, 12 W. R. 699. 

Where the master disallows some items and adds others, the bill is to be con- Calculation 
sidered as increased by the items allowed and then reduced by the sums disallowed of one-sixth. 
(Se Hartley, 2 Jur. N. S. 448 ; and see Reg. v. ^asiwoorf, 6 Ell. &B1. 288 ; Re Clark, 
13 Beav. 173 ; 1 De G. M. & G. 43 ; and in bankruptcy, Ex parte Watts, 2 M. & A. 
621 ; Ex parte Christy, 3 M. & A. 88) ;'and as to taking into account items struck 
out as chargeable against another person, see Re Clark, and the taxing-master's 
certificate in that case, 13 Beav. 181—3 ; Re Colquhoun, 1 Sm. & G. app. 1 ; S. C. 
on appeal, 8 De G. M. & G. 38, from which it seems that such items must be reckoned 
in as against the solicitor. 

Where a bill was ordered to be taxed (questions as to liability being reserved) and Where client 
less than a sixth was struck off, it was held that, whatever might be the result of pays costs, 
the question reserved, the client must pay the costs of taxation (Re Shaw, 20 L. J. 
Q.B. 280). ■ >f J K > 

As to the costs where the solicitor delivers a bill but offers to take less, see Re 
Carthew, 27 Ch. D. 488 ; Re Fault, ibid. ; 32 W. E. 876, 901. 

(«) Orders under this section for delivery of a solicitor's bill or papers may be en- Delivery of 
forced by writ of attachment or by committal ; see E. S. C. (1883), Ord. XF.I. r. bill, how 
5, Ord. XLII. rr. 7, 24, infra; Ex parte Aleock, \ C. P. D. 68 ; 24 W. E. 320 ; 33 enforced. 
1j. T. 523 ; Ex parte Belton, 25 Beav. 368. 

When the order was disobeyed, and the solicitor swore that he had no papers from 
which he could make out his bill, the Court refused to commit him for non-delivery 
(Re Ker, 12 Beav. 390). No action lay at law for disobedience to the order {Dent 
V. Basham, 9 Exch. 469). A solicitor had further time given him to make out his 
bUlou payment of the costs of his motion (Re Bendy, 21 Beav. 565). 

The Court will, before the completion of a taxation, order the delivery up of Delivery of 
papers by a solicitor to his client, either upon payment into Court of the amount papers to 
claimed, or on security being given for payment (Se Jewitt, 34 Beav. 22) ; or in case client, 
it appears from the solicitor's own account that a balance is due from him to his 
client (Re Bevan and Whitting, 33 Beav. 439, where the solicitor had been dis- 
charged ; see 6 Eq. 328). 

It is discretionary with the Court whether or not to insert a direction for delivery 
up of papers in the common order for taxation ; see Ex parte Jarnum, 4 Ch. D. 
835 ; 46 L. J. Ch. 485, where the rule is laid down by Jessel, M. R., following Re 
Byrch, 8 Beav. 124, in preference to Re league, 11 Beav. 318. See also Re Fender, 
8 Beav. 299. 

As to the solicitor's right to enforce his lien for costs by retaining papers, see Re 
Mosely, 18 W. R. 975, aoApost, p. 17. If the solicitor discharges himself, pendente 
Ute, an order may be obtained for delivery up of papers to the new solicitor, without 
prejudice to the lien, the new solicitor undertaking to return them within a limited 
time after the conclusion of the action (Robins v. Goldingham, 13 Eq. 440 ; Meslop v. 
Metcalfe, 3 M. & C. 183 ; Wihon v. Emmet, 19 Beav. 233 ; Re Williams, 28 Beav. 
465) ; and see Cane v. Martin, 2 Beav. 884. 

(«) The Legal Practitioners' Act, 1878, 38 & 39 Vict. c. 79, repealed the proviso 
at the end of s. 37 of the Solicitors Act, 1843, and substituted for it the more com- 
prehensive provision given in the text. 

XXXVni. And be it enacted, that where any person (w) not the Bills may be 
party chargeable with any such bill within the meaning of the pro- ^^^ ^\i^. 
visions hereinbefore contained, shall be liable to pay or shaU have tion of third 
paid such bill, either to the attorney or solicitor, his executor, adminis- V^^«« Uahle 
trator, or assignee, or to the party chargeable with such bill as afore- 
said ; it shall be lawful for such person, his executor, administrator, or 
assignee, to make such application {x) for a reference for the taxation 
and settlement of such bill as the party chargeable therewith might 



10 



SOLICITORS AOT, 1843. 



6 & 7 Vict, himself make, and the same reference and order shall he made thero- 
c. 73, Es. 37-43 upon^ and the same course pursued in aU respects, as if such applica- 
tion was made hy the party so chargeahle with such hill as aforesaid: 
Provided always, that in case such application is made when, under 
the provisions herein contained, a reference is not authorized to he 
made except under special circumstances ( y), it shall be lawful for the 
Court or judge to whom such application shall be made to take into 
consideration any additional special circumstances applicable to the 
person making such application, although such circumstances might 
not be applicable to the party so chargeable with the said bill as afore- 
said if he was the party making the application (z). 

(w) Under this section, the bill of a mortgagee's solicitor for business done in 
regard to the mortgaged estate, may be taxed by the mortgagor {Re Garew, 8 Beav. 
150 ; Re Lees, 5 Beav. 410 ; Re Wells, 8 Beav. 416), or by subsequent incumbrancers 
[Re Taylor, 18 Beav. 165 ; Re Jessop, 32 Beav. 406). The official manager of a 
■wound-up company obtained an order under this section {Re Vardy, 20 L. J. Ch. 
325) ; as to a trustee in bankruptcy, see Re Elmslie, 9 Eq. 72. 

A person who has undertaken to pay the costs of another as between party and 
party is not entitled to an order for taxation under this section {Re Grtmdy, Kershaw 
^ Co. (Jessel, M. R.), 17 Gh. D. 108 ; 50 L. J. Ch. 467 ; 29 W. E. 581 ; Re Cowdell, 
62 L. J. Ch. 246 ; 31 W. E. 335 ; W. N. (1883), 18) ; seem, -where the undertaking 
is to pay the costs as between solicitor and client { Vincent v. Venner, 1 My. & Ke. 212 ; 
Re Hartley, 30 Beav. 620, as explained in Re Grwndy, Kershaw ^ Co. ; Wombwell v. 
Corporation of BarnsUy, 36 L. T. 708). As to an agreement to pay a lump sum for 
cosi,s, see Re Heritage, 3Q.B.D.726; 47L. J.Q.B. 509 ; 26W.E. 633; 38L.T.509; 
ReMorris, 27 L. T. 554 ; ij« Griffith, 32 W. E. 350. A mere volunteer, tmder no previous 
liability, who undertakes to pay a solicitor's bill, cannot have it taxed {Re Becke, 
5 Beav. 406) ; nor can a person who is only remotely interested in the payment of 
the bill {Re Barber, 14 M. & "W. 720). 

Taxation can only be applied for under this and the next section in oases where 
the immediate client might have applied, e. g., after payment, special circumstances 
must be shown {Re Stephen, 2 Phil. 562; Re Dickson, 8 De G. M. & G..655). The 
taxation at the instance of the third party must be as between the solicitor and the 
immediate client, not as between the solicitor and the third party ; see Re Wells, 

8 Beav. 416 ; Re Jones, ibid. 479 ; Re Fyson, 9 Beav. 117 ; Re Barrow, 17 Beav. 547 ; 
Re Taylor, 18 Beav. 165, where the third party (a mortgagor) was held entitled to- 
the benefit of a private arrangement between the mortgagee and his solicitor, but 
see Gordon v. Dalzell, 15 Beav. 351 ; Raymond y. Zakeman, 34 Beav. 584 ; Re Newman, 
2 Ch. 707, where it was held that an agreement between the immediate client and 
the third party paying was not to affect the mode of taxation. 

If the bill has been paid without fraud or pressure by the immediate client {Re 
Neate, 10 Beav. 181 ; Re Rees, 12 Beav. 256 ; Re Dickson, 8 De G. M. & G. 655), or 
has been paid twelve months {post, p. 14), or if there is an agreement excluding 
taxation, the third party cannot tax it, under this section ; but if an excessive 
amount has been paid, he must bring an action against the client who paid the 
bill, to reduce his liability ; see Re Downes, 5 Beav. 425 ; Re Massey, 34 Beav. 463 ; 
11 Jur. N. S. 594 ; 13 W. E. 797 (where Re Jessop, 32 Beav. 406 ; Se Baker, 32 Beav. 
526 ; and Re Abbott, 4 L. T. 576, were not followed) ; Re Press andlnskip, 36 Beav. 
34 ; Re Forsyth, 34 Beav. 140; 2 De G. J. & S. 509 ; 13 W. E. 307, 932 ; 11 Jur. 
N. S. 213 ; Re Gold, 19 "W. E. 343 ; 24 L. T. 9. 

{x) The proceedings under this section may be by order of course {Re Straford, 
16 Beav. 27; comp. Re Moss, 17 Beav. 340 ; Re Bracey, 8 Beav. 338 ; Re BignoU, 

9 Beav. 269) in cases where a Kke proceeding might have been adopted by the 
immediate oUent, see note («), p. 6 ; Re Hartley, 30 Beav. 620. 

{y) See ante, note {«), axApost, note {g), p. 12. 

(z) See Re Vardy, 20 L. J. Ch. 325, as to the force of these words. 

Court may XXXIX. And be it enacted, that it shall" be lawful in any case in 

tion^o/bms """liioh a trustee, executor, or administrator has become chargeable 
chargeable on with any such bill as aforesaid, for the Lord High Chancellor or the 
executors, &c. ]^aster of the Eolls, if in his discretion he shall think fit (o) upon the 
appUoation of a party interested (6) in the property out of which such 



Who entitled 
to apply under 
this section. 



Persons who 
undertake to 
pay- 



Volunteer. 



Not unless the 
client could 
have taxed. 

Taxation on 
what prin- 
ciple. 



Order, when 
of course. 



SOLICITOES ACT, 1843. U 

trustee (4), executor, or administrator may have paid or be entitled to 6 & 7 Viot. 
pay such bOl, to refer the same, and such attorney's or solicitor's, or °- ^^' ^^- ^^'^^ 
executor's, administrator's, or assignee's demand thereupon, to be 
taxed and settled by the proper oflacer of the High Court of Chancery, 
•with such directions and subject to such conditions as such judge shall 
think fit, and to make such order as such judge 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 herein contained relative 
to applications for the like purpose by the party chargeable with such 
bin, so far as the same shall be applicable to such cases, and in exer- 
cising such discretion as aforesaid, the said judge may take into con- 
sideration the extent and nature of the interest of the party making 
the application : Provided always, that where any money shall be so 
directed to be paid by such attorney or solicitor, or the executor, 
administrator, or assignee of such attorney or solicitor, it shall be 
lawful for such judge, if he should think fit, to order the same, or any 
part thereof, to be paid to such trustee, executor, or administrator so 
chargeable with such bill, instead of being paid to the party making 
such application ; and when the party making such application shall 
pay any money to such attorney or solicitor, or executor, adminis- 
trator, or assignee of such attorney or solicitor, in respect of such bill, 
he shall have the same right to be paid by such trustee, executor, or 
administrator so chargeable with such bill as such attorney or solicitor, 
or executor, administrator, or assignee of such attorney or solicitor, 
had. 

(a) For form of order, see lie Dawson, 28 Beav. 605. The proceedings under this Application 
section must be by special application {£e Straford, 16 Beav. 27) ; i. «., by summons by cestui que 
in chambers (R. S. C. 1883, Ord. LV. Pt. I. r. 2 (15) ). trust. 

The taxation under this section is as between the solicitor and the immediate rp . ■ 
client ; but a solicitor cannot charge against a trust estate anything not necessary >, + ' 

for the administration thereof, although expressly directed by the trustee ; for pay- ^,-fj,„;_i 
ment of such charges he must look to the trustee personally (fie Brown, 4 Eq. 464 ; ^ " ' 
15 W. E. 1030 ; 16 L. T. 729). 

Taxation of a bill may be ordered under this and the last section after payment After pay- 
or security given for the amount by the trustee or executor (fie Dickson, 8 De Gr. ment. 
M. & Gr. 66S), but in such case the cestui que trust seeking to tax must show over- Overcharcpa 
charges amounting to fraud (fbid.). Lord Eomilly, M. E., seems to have held a ° ' 

different opinion, see Jie Drake, 22 Beav. 438 ; Ee Blackmore, 13 Beav. 154 ; Re 
Dawson, 28 Beav. 605 ; and see note [w), p. 10, on taxation by third party. 

For form of order where the trustee was dead, see Re Sallett, 21 Beav. 250, and Where trustee 
Allen V. Jarvis, 4 Ch. 616, where the trustee was also solicitor, and had retained dead, 
his biU. 

(4) A bankrupt who has obtained his discharge and become entitled to the surplus " Party in- 
of his estate cannot obtain taxation of a bill of costs paid by the trustee in the terested.' ' 
bankruptcy ; he is not a " party interested," and the trustee in bankruptcy is not 
a "trustee" within the meaning of the Act [Re LeadUtter, 10 Ch. D. 388; 26 
W. E. 863 ; 39 L. T. 12). 

XL. And be it enacted, that for the purpose of any such reference Copy of bill to 
upon the application (c) of the person not being the party chargeable ^ p^^^''^'^ 
within the meaning of the provisions of this Act as aforesaid, or of a makiag appli- 
party interested as aforesaid, it shall be lawful for such Court or jgfg°gno°% 

taxation. 



12 



SOLICITORS ACT, 1843. 



6 & 7 Viot. judge to order any such attorney or solicitor, or the executor, adminis- 
0. 73, SB. 37-4 3 trator, or assignee of any such attorney or solicitor, to deliver to the 
party making such application a copy of such bill, upon payment of 
the costs of such copy: Provided always, that no bill which shall 
have been previously taxed and settled shall be again referred unless, 
under special circumstances, the Court or judge to whom such applica- 
tion is made shall think fit to direct a re-taxation thereof. 



No re- 
taxation. 



Delivery of 
bill to cestui 
que' trust. 

Taxation of 
bill after 
payment. 



Security is 
equivalent to 
payment. 

Retainer by 
solicitor is 
not. 



Form of 
order. 

Mode of 
application. 

' ' Special cir- 
cumstances.' ' 



(1) Pressure 

accoi 

by some 



Refusal to 
deliver up 
papers. 



Threats 
to enforce 
securities. 



(e) For form of order under this section, see Seton, 622 ; and see Me Blackmore, 
13 Beav. 164, 161. 

XLI. And be it enacted, that the payment (c?) of any such bill as 
aforesaid (e) shall in no case preclude the Court or judge to whom 
application shall be made from referring such biU for taxation (_/) 
if the special circumstances of the case (5') shall in the opinion of such 
Court or judge 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 (A). 

[d) The giving of security is for the purpose of this section equivalent to payment 
(ExpaHe Turner, 5 De Gr. M. & G. 540 : Sayer v. Wagataff, 5 Beav. 416 ; 13 L. J. 
Ch. 161 ; 14 L. J. Oh. 116 ; He Sarper, 10 Beav. 284 ; Re Currie, 9 Beav. 602 ; but 
see Re Brake, 22 Beav. 438; Re Harries, 13 M. AW. 3); but retainer by the 
solicitor without deKvery of a biU or settlement of accounts is not {Re Bignold, 
9 Beav. 270 ; Re Steele, 20 L. J. Ch. 662 ; Re Street, 10 Eq. 166 ; ije Angove, 46 L. T. 
280 ; Re Oawley and Whatley, 18 W. E. 1125'; Re Brady, 15 "W. R. 632). See, how- 
ever, Ex parte Bemming, 28 L. T. (0. S.) 144 ; Re Gregg, 30 Beav. 259 ; Ex parte 
Shachell, 2 De G. M. & G. 842 ; Allen v. Jarvis, 4 Ch. 616. 

Payment on account is not such payment as to require a special application where 
the application is made within twelve months from the delivery of the bill (Re 
Woodard, 18 W. R. 37). 

(«) These words apply to all biUs mentioned in the previous part of the Act, in- 
cluding an unsigned bUl {Re Sutton, 11 Q. B. D. 377), and bills sought ta be taxed 
by third parties {Re Dotimes, 5 Beav. 425). 

(/) For form of order for taxation after payment, see Seton, 618. 

The application was formerly by petition served on the solicitor, and it was held 
that the petition should state when payment was made {Re Mash, 15 Beav. 83). It 
is now made by summons in chambers (R. S. C. 1883, Ord. LV. Pt. I. r. 2 (16) ). 
As to the effect of delay in making the application, see "laches and acquiescence," 
infra, note (A). 

{g) A great variety of cases have been decided as to the meaning of the words 
" special circumstances." They have generally been held to signify either " pres- 
sure, accompanied by some overcharge," or "overcharges or errors so gross as to 
amount to fraud." It will be convenient to consider each ground under a separate 
head. 

(1) Cases of " pressure accompanied by some overcharge " generally occur where 
a client has been practically obliged to pay a biU of costs without having an oppor- 
tunity of inspecting and examining it, either because — 

(a) The solicitor having deeds in his possession which he knew it was of import- 
ance to the client to obtain without delay, refused to deliver them up unless his bill 
was first paid {Re Pugh, 32 Beav. 173; 1 De G. J. & S. 673; 11 W. R. 762 and 
cases there cited; Re Elmslie, 12 Beav. 538 ; Re Alcock, 2 CoU. 92; Re Lett 31 Beav 
488 ; 32 L. .T. Ch. 100 ; 11 W. R. 15 ; 7 L. T. 303, where the solicitor' deUvered 
two bills, one on a higher the other on a lower scale, and the client having paid the 
higher biU under pressure, the delivery of the lower one was held no defence to the 
order for taxation ; Re Phillpotts, 18 Beav. 84 ; Re Newman, 2 Ch. 707, where the 
defence was set up that the client had himself created the difficulty which made the 
deeds necessary to him) ; 

(P) Or because the solicitor having securities of the client in his possession 
threatened to enforce them unless the bill was paid at once (Re Ranee 22 Beav 
177 ; Re Kinneir, 7 W. R. 175 ; Re Foster, 2 De G. F. & J. 106) • ' 



SOLICITORS ACT, 1843. 13 

(7) Or, generally, -where the solicitor has taken undue advantage of the exigencies 6 & 7 Vict. 
of the client's position (Se Stephen, 2 Ph. 562 ; Mkes v. Warton, 6 Beav. 448 ; see q 73 gg 37.43 
Se Wyehe, 11 Beav. 209). ' 

If the client has had an opportunity of examining and taxing the bill, these oases Generally 
do not apply, and even a we^ was held sufficient opportunity in Ee Wehhman, 11 taking an 
Beav. 319 (comp. Re Mash, 15 Beav. 83) ; a fortnight in Se Neate, 10 Beav. 181 ; advantage, 
three weeks in Re Neate, ibid. 57 ; and see Re Drew, ibid. 368 ; Re Currie, 9 Beav. 
602 ; Mkes v. Warton, 5 Beav. 448 ; Re Soyle, 5 Be G. M. & G. 540 ; Re Browne, Exception 
1 De G. M. & G. 322, where it was said that the pressure must have been of such ^'^^^ ™^'^* 
a kind as to have rendered it impossible or difficult to have had the costs taxed "^^ "^"- 
before payment and in the ordinary course; Re Barrow, 17 Beav. 547, where the opportunity 
M. E. said that the doctrine of pressure in oases of taxation after payment is not to to exanune 
be extended; and Re Heritage, Rx parte Docker, 3 Q. B. D. 726 ; 47 L. J. Q. B. 509 ; °"^- 
26 W. R. 633; 38 L. T. 509. 

In all such oases the Court will only direct taxation if there is at least a reason- ggme over- 
able belief that if the bill be taxed, some of the charges will be disallowed [Re cJiarffe should 
Sladden, 10 Beav. 488) ; therefore some items of overcharge ought to be pointed ^jg proved, 
out (-Re Brady, 15 W. R. 632) ; though not necessarily such as to amount to fraud 
{Re Wells, 8 Beav. 416; Re Subbard, 15 Beav. 251 ; Re Abbott, 18 Beav. 393 ; Re 
Toale, 30 Beav. 170 ; Re Newman, 2 Ch. 707) ; and the absence of any affidavit or 
other proof as to items of overcharge wUl be a reason for dismissing the application 
(Ex parte Barton, 4 Be G. M. & G. 108 ; 16 Beav. 585). 

So the fact that the bill was paid under protest is only material if connected with Payment 
circumstances of pressure or overcharge (Re Neate, 10 Beav. 181-183); and where under protest 
a bill is paid under protest, the particular items objected to should, if possible, be 
pointed out (Re Davie, 8 W. R. 15) ; and see Re Dearden, 9 Ex. 210 ; Re Bayley, 18 
Beav. 415. 

Payment for the purpose of staying proceedings in an action is no bar to taxation, Payment in 
R. S. C. 1883, Ord. III. x. 7, infra. stay of pro- 

(2) Where there is no pressure the Court will only order taxation after payment oeedings. 
on proof of " overcharges amounting to fraud " (Re Strother, 3 K & J. 518 ; Sorloch /,■, -n.^ j 
v. Smith, 2 M. & Or. 495 ; Re Dickson, 8 De G. M. & G. 655). lent ovct- 

Some of the particular charges relied on must be pointed out (Re Browne, 1 De G. „i,„__.„ / J,,>7, 
M. & G. 322, 333 ; Re Foster, 2 De G. F. & J. 105 ; Dzmt v. Dunt, 9 Beav. 146 ; Re „„f !,?Si,!»li 
TowU, 30 Beav. 170) ; but not all (Re Dawson, 28 Beav. 60S). ompresstire). 

Trifling items will be insufficient (Re Drake, 8 Beav. 123 ; Re Thompson, ibid. 237 ; 
Se Bayley, 18 Beav. 415). 

And generally the onus is on the appKcant to show that the charges under the Onus is on 
special circumstances were fraudulent ; see Re Walsh, 12 Beav. 490 ; Re Towle, 30 the client. 
Beav. 170, where charges for eight attendances in one day were held not sufficient 
to open a paid bill ; Se Boyle, 5 De G. M. & G. 540 ; 24 L. J. Ch. 71, where 240 
letters were written in one year ; and Re Harle, 17 W. R. 21. 

But where the solicitor had before action oSered to take iOl. in lieu of a biU of Ciroum- 
68Z., it was held a case for reference to taxation after twelve months (Hughes v. stances evi- 
Murray, 9 L. T. 93) ; and in Re Loughborough, 23 Beav. 439, the solicitor kept back dencing 
his bfll, and fraud was presumed against him. fraud. 

And when a considerable portion of the bill is for business which in the exercise Fraudulent 
of a fair and honest discretion ought never to have been done, the Court directs jtemg. 
taxation (Massie v. Drake, 4 Beav. 433 : Re Lees, 5 Beav. 410 ; Re Barrow, 17 Beav. 
547 ; Re Dickson, 8 De G. M. & G. 655 ; Horloch v. Smith, 2 M. & Cr. 495 ; Waters 
■v.tTaylor, ibid. 526 ; Re Brady, 15 W. R. 632) ; and see Cook v. JSarl of Rosslyn, 8 
Jut. N. S. 875 ; Re Hook, 3 GifE. 372. a i 1 * j 

Where the overcharges evidence actual fraud, very slight circumstances will Actual iraud. 
induce the Court to re-open the taxation (Re Harding, 10 Beav. 250 ; Nohes v. 
Warton, 5 Beav. 448). So where the solicitor has also acted as a trustee (Todd v. 
Wilson, 15 L. J. Ch. 450 ; but see Stanes v. Barker, 10 Jur. 603). 

See further, with reference to great overcharges, in addition to the oases cited Gross over- 
above. Ex parte Andrews, 13 L. J. Ch. 222 ; Ex parte Hemming, 28 L. T. (0. S.) 144 ; charges. 
Sayer v. Wagstaff, 5 Beav. 415 ; Re Bennett, 8 Beav. 467 ; Re Sladden, 10 Beav. 488 ; 
Newton v. BoodU, 4 C. B. 359 ; Re Dearden, 9 Ex. 210. 

Where on a petition being presented for taxation of a paid bill, the solicitor 
offered to repay items objected to, and the petitioner nevertheless brought on his 
petition for hearing, the Court ordered taxation, treating those items as omitted 
(Re CatUn, 23 Beav. 412 ; but see Ex parte Hemming). 

See further, as to special circumstances. Re Whicher, 13 M. & W. 549 ; Re Wilton, 
13 L. J. Q. B. 17, and note (r), ante, p. 7. 

(h) As to the mode of calculating the time, see Blunt v. Heslop, 8 Ad. & EU. 577, Twelve 
cited in note (e), p. 4 ; and in cases where security has been given, see cases cited months after 
in note (d), p. 12. When (under the former practice) the application was by petition, payment, 



14 



SOLICITORS ACT, 1843. 



6 & 7 Viet. 
0. 73, sa. 37-43 

strictly 
calculated, 

an absolute 
bar to taxa- 
tion. 



Laches and 
acquiescence. 



Wliere time 
does not run 
against client. 

He-opening 
biUs of costs, 
by action. 



Power for 
taxing officer 
to request 
officers of 
other Courts 
to tax por- 
tions of the 
bill. 



Applications 
for taxing 
bill of costs, 
how to be 
made. 



Certificate of 
taxation to be 
final. 



the petition was considered as presented on the day of answering it {Sayer v. 
Wagataff, 5 Beav. 41S). 

Where a petition was presented within twelve months, but no order was made, 
the Court refused to allow it to stand over for amendment, twelve months having in 
the meantime expired [Barwell v. Brooks, 7 Beav. 345). 

The twelve months are an absolute bar to the appHoation if made under the Act 
{Me Barper, 10 Beav. 284 ; Ee Soumes, 5 Beav. 425 ; Binns v. Sey, 1 D. & L. 661 ; 
13 L. J. Q. B. 28 ; Hx parte Hemming, 28 L. T. (0. S.) 144 ; Mx parU Pemberton, 
2 De G. M. & G. 960) ; unless, perhaps, actual fraud be shown [ibid, per Lord Cran- 
worth) ; and the rule is the same in the case of an application by a third party or a 
cestui que trust, see ante, pp. 9, 10. 

The lapse of less than the twelve months may be an objection to granting the 
application. {Re Bayley, 18Beav.415; iJ« Pjj^A, 32 Beav. 173; onappeal, llW.E. 
762 ; Re JBroume, 1 De G-. M. & G. 322 ; Ee Whielwr, 13 M. & W. 549.) 

Where a client having fresh advice kept the bill two months in his possession and 
then paid it, such delay was held by Vice -Chancellor Wood to be fatal to an appli- 
cation for taxation on the ground of overcharge ; but the Lords Justices, being of 
opinion that the biU was originally paid under circumstances amounting to pressure, 
reversed this decision, and ordered taxation of the bill {Re Foster, 2 De G. I*. & J. 
105 ; 8 W. B. 620 ; and see note (;■), p. 7, ante). 

But the Court may order delivery of the bill, though more than twelve months 
have elapsed from its payment, the solicitor having on payment undertaken to 
deliver the bills, but neglected to do so {Ee Mljamhe, 9 Beav. 402 ; Ee Bailey, 34 
Beav. 392 ; Re Fisher, 18 Beav. 183). 

As to re-opening bills of costs by action, see Barwell v. Brooks, 8 Beav. 121 ; 
Blagram v. Routh, 2 K. & J. 509 ; 8 De G. M. & G. 620 ; FoUy v. Smith, 12 Beav. 
.154. In Turner v. Sand, 27 Beav. 561, a solicitor delivered a general estimate of 
costs due to him, without specifying the particulars, and the client signed a memo- 
randum agreeing to the statement, and requesting a third person, to whom he bad 
given his _aoceptances, to pay it ; and a bill filed by tbe client three years after- 
wards for delivery and taxation was dismissed with costs. See, also, Todd v. Wilson, 
15 L. J. Ch. 450 ; Stanes v. Parker, 10 Jur. 603 ; Watson v. Eodwell, 7 Ch. D. 625 j 
on appeal, 11 Ch. D. 150 ; 48 L. J. Ch. 209 ; 27 W. E. 265 ; 39 L. T. 614, where 
paid bills were set aside after a lapse of two years. 

XLII. And be it enacted, that in all cases in wliich. such. hiU 
shall have been referred to be taxed and settled, the officer to 
■whom such reference is made shall be at liberty to request the 
proper officer of any other Court having such an officer to assist 
him in taxing and settling any part of such bill, and such officer so 
requested shall thereupon proceed to tax and settle the same, and shall 
have the same powers and may receive the same fees in respect thereof 
as upon a reference to him by the Court of which he is such officer, 
and shall return the same, with his opinion thereon, to the officer who 
shall have so requested him to tax and settle the same ; and the officer 
to whom such reference is made shall not be paid any fee for that 
portion of the bill which shall have been so taxed and settled by the 
officer of such other Court at his request {i). 

(i) See R. S. C. 1883, Ord. LXV. infra, and notes, as to the taxing masters. 

XLIII. And be it enacted, that all applications (A) made under this 
Act to refer any such bill as aforesaid to be taxed and settled, and for 
the delivery of such bill, and for the delivering up of deeds, docu- 
ments, and papers shall be made in the matter of such attorney or 
solicitor {I) and that upon the taxation and settlement of any such bill 
the certificate of the officer by whom such biU shall be taxed shall 
(unless set aside or altered by order, decree, or rule of Court) be final 
and conclusive as to the amount thereof, and payment of the amount 



SOLICITORS ACT, 1843. 15 

certified to be due and directed to be paid may be enforced (m) 6 & 7 Vict, 
according to the course of the Court in which such reference shall be °- 73, as. 37-43 
made ; and in case such reference shall be made in any Court of 
common law, it shaU. be lawful for such Court or any judge thereof to Judgment 
order judgment to be entered up for such amount, with costs, unless ^^^ 
the retainer shall be disputed, or to make such other order thereon as 
such Court or judge shall deem proper. 

(i) By R. S. C. 1883, Ord. LV. Pt. I. i-. 2 (15), all special appUoations for Special appU- 
taxation and delivery of bills and delivery of papers under the Act must be made cation for 
by summons, and this applies, though the client also asks that a sum of money taxation, 
improperly retained by the solicitor may be refunded {He May, 34 Beav. 132 ; 34 
L. J. Ch. 236 ; 13 W. E. 377 ; Re Edmunds, 19 "W. E. 104). 

(I) As to the title of the application, seeiJe Vallanoe, 8 Seott, N. R. 232 ; Re Hair, Title and form 
ibid. 231 ; Re Walton, 4 K. & J. 78. It need not be headed in the matter of the of application. 
Act ifbid.). It must state the time of payment, if presented after payment (Re 
Mash, 15 Beav. 83). 

(m) An action brought after taxation has been ordered is a contempt [Re Campbell, Action after 
3 De &. M. & G. 585). As to enforcing the order, see R. S, 0. 1883, Ord. XLII. taxation is a 
infra; DanieU, p. 1262. contempt. 



SOLICITOES ACT, 1860. 23 & 24 Vict. 

c.l27,SB.27-29 
23 & 24 VICT., Cap. 127, ss. 27—29. 

An Act to amend the Laws relating to Attorneys, Solicitors, Proctors, 
and Certificated Conveyancers. [28th August, I860.] 

XXVII. Whenever a decree or order is made by the Court of Interest on 
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 passing 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 (o) 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 re- 
coverable out of the same fund or in the same manner as the amount 
of such costs. 

The Act is now called "The Solicitors Act, 1860 ; " see the Solicitors Act, 1877, Short title. 
40 &41 Vict. 0. 25, s. 1. 

(fl) It seems that this section only enables the solicitor, and not a party to the Only solicitor 
suit, to claim interest (Jenner v. Morris, 11 W. R. 943). Orders were made under can apply, 
the Act in cases where payment of costs had been unavoidably delayed ; see Carter 
V. Carter, 2 N. R. 512; 8 L. T. 692; Vox v. Charlton, 6 N. R. 352; Re Campbell, 
19 "W. R. 427. "Where there were mortgages on the estate charged with the costs 
the Court declined to make any order until there had been an inquiry as to incum- 
brances [Twynam v. Porter, W. N. (1872), III). In directing payment of a mort- Interest on 



16 



SOLICITORS ACT, 1860. 



23 & 24 Vict, gagee's principal, intereBt and ooBts out of the purchase-money of the mortgaged 
c.l27,es.27-29 property, the Court directed interest to be paid on the costs £com the date of the 

'- certificate [Whitfield v. Roberts, 9 "W. E. 844). By the Attorneys and Solicitors 

disburse- Act, 1870, 33 & 34 Vict. c. 28, s. 17, infra, interest may be allowed on taxation in 

ments. respect of disbursements and advances ; and see the Solicitors' Remuneration Act, 

1881, 44 & 48 Vict. c. 44, s. 5. 



Power for 
Court or 
judge to 
charge pro- 
perty reco- 
vered or pre- 
served with 
payment of 
costs. 



Act to be 
construed 
liberally. 

Town agent. 

Personal 
representative 
of solicitor. 

Bmployment 
by infant ; 



by married 
woman. 

Order, where 
to be obtained. 



XXVIII. In every case in which an attorney or solicitor (6) shall 
he employed (c) to prosecute or defend any suit, matter, or proceeding 
in any Court of justice, it shall he lawful for the Court or judge {d) 
hefore whom any such suit, matter, or proceeding has heen heard, or 
shall be depending, to declare such attorney or solicitor entitled to a 
charge (e) upon the property recovered or preserved {f) and upon such 
declaration being made, such attorney or solicitor shall have a charge 
upon and against and a right to payment out of the property, of what- 
soever nature, tenure, or kind the same may be, which shall have been 
recovered or preserved through the instrumentaKty of any such at- 
torney or solicitor, for the taxed costs, charges, and expenses of or in 
reference to such suit, matter, or proceeding ; 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 bond 
fide purchaser for value without notice, be absolutely void and of no 
effect as against such charge or right {g) : Provided always, that 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 ex- 
penses is barred by any Statute of Limitations (Ji). 

The Act is to be construed liberally {SchoUfield v. Zookwood, 7 Eq. 83 ; Serrie v. 
Sowitt, 9 Eq. 1 ; 39 L. J. Ch. 119 ; BaUe v. Baile, 13 Eq. 497). 

(i) The town agent of a country solicitor may be declared entitled to a charge for 
an unascertained balance due to Mm from the country solicitor (Tardrew v. Howell, 
3 aiff. 381 ; 7 Jut. N. S. 1120 ; 10 W. R. 32). Attorneys and solicitors are now 
styled "solicitors of the Supreme Court" (Judicature Act, 1873, s. 87). 

The charge may be declared in favour of the legal personal representative of a 
solicitor [Baile v. Baile) . 

[e) An infant's property can be charged under the Act ; but where the property 
recovered or preserved consists of a fund, no part of it will be actually paid to the 
solicitor till the infant attains twenty-one, and has an opportunity of disputing the 
charge [Greer v. Young (C. A.), 24 Ch. D. 545). See further as to charging the 
property of infants, Baile v. Baile; Bonser v. Bradshaw, 30 L. J. Ch. 159 ; 9 W. R. 
229 ; 8. G. on appeal, 10 W. R. 481 ; 8. C. on further hearing after the infant had 
attained twenty-one, 4 Gifi. 260 ; 9 Jur. N. S. 1048. An infant's costs can be made 
a charge in an action [Pritchard v. Roberts, 17 Eq. 222). A married woman's pro- 
perty, though subject to a restraint on anticipation, may be charged [Se Keane, 
Burnley v. Desborough, 12 Eq. 115). 

[d) The order lleolaring the charge must be made in that branch of the Court 
to which the suit is attadied, and may be made though the suit has come to an 
end [Seinrich v. Sutton, 6 Ch. 865 ; Jones v. Frost, 7 Ch. 773). It must be made 
by the judge who tried the case [Siggs v. 8chrader, 3 C. P. D. 252 ; 47 L. J. 
C. P. 426 ; 26 W. R. 831 ; Porter v. West, 60 L. J. Ch. 231 ; W. N. (1880), 195 ; 
29 W. R. 236 ; 43 L. T. 569) ; and where the action, though intituled in the 
Chancery Division, is tried before a judge and jury, the application must be made 
to the judge who tried the action and not to the Chancery judge [Oweny. Henshaw, 
7 Ch. D. 385 ; 47 L. J. Ch. 267 ; 26 W. R. 188). "Where the cause was tried in 
the Court of Common Pleas at Xiancaster, the application for a charging order was 
rightly made to the Common Pleas Division [Catloic- v. Catlou; 2 C. P. D. 362, 



SOLICITORS ACT, 1860. 17 

followmg mison v. Mood, 3 H. & C. 148 ; 33 L. J. Ex. 204). The Court in which 23 & 24 Vict, 
the action -was brought may make the order notwithstanding a decree for adminis- o.l27, S8.27-29 
tration (Wikon v. Mood; Catlow v. Catlow). '■ 

The order may be made either on petition {Brown v. Trotman, 12 Ch. D. 880 ; 48 Order may be 
li. J. Ch. 862 ; 41 L. T. 179 ; 28 W. E. 164) or on summons (Clover v. Adams, 6 made on 
Q. B. D. 622 ; Bamer v. GiUs, Giles y. ffmner (M. R.), 11 Ch. D. 942 ; 48 L. J. Ch. petition • 
508 ; 41 L. T. 270 ; 27 W. R. 834) ; and the other parties to the action should not 
be served {Brown v. Trotman). The petition or summons must be intituled in the °' summons, 
action, but not necessarily in the matter of the Act or of the solicitor {Samer v. Giles, intituled in 
Giles V. Mamer). A solicitor who has properly discharged himself may obtain an the action, 
order {Clover v. Adams). As to the form of the order see Seton, p. 643 ; Pilclier v. jiqjjjj gf 
Arden, 7 Ch. D. 318 ; 27 W. R. 273 ; and as to the time when an application may be gjijgj 
made for raising the amount charged by a sale, see JRe Green, 26 Ch. D. 16 ; 
Jackson v. Smith, W. N. (1884), 151. Where an order had been made charging a 
fund that had been paid into Court, and the solicitor took out a summons calling on 
the party to show cause why the fund should not be paid out to him, and the party 
evaded service of the summons, substituted service was allowed {Sunt v. Austin, 9 
Q. B. D. 598). In making the order it is the duty of the Court to limit it to costs 
properly incurred {Emdm v. Carte, 19 Ch. D. 311 ; 30 W. R. 17 ; 45 L. T. 328). 

(«) As to solicitor's lien generally, see Fisher, 1 94, seq. ; Daniell, 1975; Morgan and As to soKci- 
Wurtzburg on Costs, 551. The lien is of two kinds; (1) A general lien on all tor's hen 
papers and documents of the client which may happen to be in the solicitor's hands generally ; 
in the way of business ; this Ken extends to all professional costs, but cannot be Sen of two 
actively enforced. (2) A lien on a fund recovered in an action ; this lieu extends kinds : 
only to the costs of the particular suit under which the fund arises, but to this j Qn papers, 
extent the solicitor may actively enforce it. „ On fund 

A solicitor who conducts a cause to its conclusion in the place of one who by -loovered 
arrangement with his client retires from conducting it, has priority for his costs in 
case of a deficiency of assets {Cormaek v. Beisley, 3 De Q. & J. 157 ; but see Ee Priorities of 
Aiidley Sail Co., 6 Eq. 245, as to priorities of successive solicitors). solicitors. 

A solicitor who begins a cause, engages to continue to act till the end of it ; and Solicitor re- 
if he refuses to go through with it he has no hen and cannot even bring an action fusing to 
for his bin {Cresswell v. Byron, 14 Ves. 272 ; Commerell v. Foyntm, I Swanst. 1). proceed. 
But see Ee Hall and Barker, 9 Ch. D. 538, ante, p. 7. 

If a solicitor discharges himself pendente lite, he must deliver up all necessary -Wliere 
papers to the new solicitor without prejudice to the Hen, the latter undertaking to solicitor 
return them on the conclusion of the action {Bobins v. Goldingham, 13 Eq. 440 ; discharges 
Seslopy. Metcalfe, 3 My. & Cr. 183 ; 7 L. J. Ch. 49) ; and see Colegrave v. Mcmley, himself. 
T. & R. 400 ; Wilson v. Emmett, 19 Beav. 233 ; Webster v. Ze Sunt, 9 W. R. 804 ; 
Be S., 15 W. R. 168 ; Cane v. Martin, 2 Beav. 584. For the practice where no suit 
is pending see Bawlinson v. Moss, 7 Jur. N. S. 1053 ; 9 W. R. 733. 

A solicitor who refuses or neglects to proceed is considered as having discharged -^ytat is a 
himself {Bobins v. Goldingham ; Hannaford v. Sannaford, 19 W. R. 429 ; 24 L. T. 86) ; discharge by 
and see Be Williams, 28 Beav. 465 ; Steele v. Seott, 2 Hog. 141 ; and a dissolution of jj^g solicitor, 
partnership is a discharge by the solicitors ; see Cholmondeley v. Clinton, 19 Ves. 273 ; T-n-.-i.-i,-™ 
Griffiths y: Griffiths, 2 Ha. 587 ; 12 L. J. Ch. 397 ; Seott v. Fleming, 9 Jur. 1085 ; ^ !,™^e°. 
Bawlinson v. Moss. As to the effect of alterations in a firm of solicitors, see Felly v. , ,^ 
Waihen, 7 Ha. 361 ; 18 L. J. Ch. 285 ; 14 Jur. 9 ; Ee Forshaw, 16 Sim. 121. ^• 

When a solicitor is discharged by his client pendente lite, he is not bound to give -^yhere 
the latter any facilities for prosecuting the suit, and may to some extent embarrass goUcitor is 
him by retaining papers; see Bozonv. Bolland, 4My. &Cr. 354; Lordy .Wormleighton, discharged 
Jac. 680 ; Griffiths v. Griffiths, 2 Ha. 687 ; Be Smith, 9 W. R. 396 ; Be Faithfull, ^„ client. 
6 Eq. 325 ; Piloher v. Arden, Be Brook, 7 Ch. D. 318. But he cannot stop the 
progress of an administration suit or otherwise obstruct the course of the Court ; 
see Belaney v. Ffreneh, 8 Ch. 918 ; 43 L. J. Ch. 312 ; Be Boughton, Boughton v. 
Boughton, 23 Ch. D. 169 ; 31 W. R. 617 ; Clifford v. Turrill, 2 De G. & S. 1 ; Bird 
v. Heath, 6 Ha. 236 ; Simmonds v. Great Eastern Bail. Co., 3 Ch. 797 ; 16 W. R. 
1100. If he is discharged by a person who comes in under but adversely to_ the client, 
e.g.B, trustee in bankruptcy, it is clear that he cannot refuse to deliver up aU 
necessary documents {Simmonds v. Great Eastern Bail. Co.) ; and see Ee South Essex 
Co., i Ch. 215 ; Boss v. Laughton, 1 V. & B. 349 ; Ee Toleman and England, Ex parte 
Bramble, 13 Ch. D. 885. , . , , , ^ 

As to the lien of the solicitor of a company which is ordered to be wound up, see Winding-up. 
Ee South Essex Co. ; Be Capital Fire Insurance Co., 24 Ch. D. 408, where Belaney v. 
Ffreneh and Boughton y. Boughton are diBtsoBBed. ,.. . 

The town agent has a lien on the client's papers for the amount due to him from Lign of town . 
the country solicitor, but only to the extent of the amount due to the latter from agent, 
the cEent ; and if the cUent pays the country soUcitor without notice of the town 
agent's claim the lien is gone {Ward v. Hepple, 15 Ves. 297 ; Ex parte Steele, 16 Ves. 
164 • Waller v. Holmes, 1 J. & H. 239 ; Featfield v. Barlow, 8 Eq. 61 ; 38 L. J. Ch. 



18 SOLICITORS ACT, 1860. 

23 & 2i Viot 310 ; 20 L. T. 217 ; Cockayne v. Harrison, 15 Eq. 298 ; 42 L. J. Ch. 660 ; Vyse v. 

o 127 S9 27-29 Foster, 32 L. T. 219 ; afSrmed, 23 W. E. 413). , „ ^i, i j: 

• ^' ' (/) As to tte meaning of "property recovered or preserved," see the remarks of 

" Property Jessel, M. E., and MeUish, L. J., in Foxon v Gascoigne, 9 Ch 654 ; 43 L. J. Ch. 

recovCTed or 729 ; the section extends to a chose in action {Birchall v. Tugin, Li.K. 10 U. ^■J^')- 

preserved " Property has been held to be recovered or preserved in the followmg cases : Wnere 

■ a cestui que trust obtained the appointment of a receiver in a suit against a trustee 

though the suit was subsequently compromised (Twynam v. Porter, 11 -tq. 181 j 40 

L J Ch. 617; and see -B«ife v. Baile, 13 Eq. 497); where a mortgagee obtained 

a foreclosure decree {Wilson v. Bound, 4 Gifi. 416 ; 10 Jur. N. S. 34) ; where land 

was recovered in ejectment [Wihon v. Hood, 33 L. J. Ex. 204 ; 3 H. & C. 148 ; 10 

Jur. N. S. 592) ; where the client was defendant in a foreclosure suit, the result ot 

which was that the chance of foreclosure was lessened [Scholefield v. lockwood, 7 Eq. 

83) ; where a suit was successfully conducted against an incumbrancer whose 

incumbrance, though valueless, was a cloud upon the title [Jones v. Frost, 7 Ch. TIS) \ 

where judgment was recovered in an action of detinue, and the proceeds of the 

goods were subsequently paid into Court in an administration suit {Catlow v. Cathw, 

2 C. P. D. 362 ; 25 W. E. 866) ; where the defendant paid money into Court in the 

action (CUver v. Adams, 6 Q. B. D. 622; Emden v. Carte, 19 Ch. U. 311 ; .45 L. T. 

328 ; 30 "W. E. 17 ; and see Jackson v. Smith, "W. N. (1884), 151) ; where an order 

was made under the Declaration of Titles Act, 1862 (JPritehard v. Soberts, 17 Eq. 

222) ; and see also Smith v. Winter, W. N. (1870), 34 ; 18 W. E. 447 ; Be Kerne, 

Lumley v. Desborough, 12 Eq. 115 ; 40 L. J. Ch. 617 ; Morris v. Francis, cited 12 

Sol. J. 718 ; The Phillipine, L. E. 1 A. & E. 309 ; 15 "W. E. 462. 

Where, however, a decree was made for administration and the appointment of 
a new trustee, and the decree was carried into chambers and the accounts brought 
in, but all further proceedings were then stopped. Lord Selbome, L. C, held that 
no property had been recovered or preserved (Pinkerton v. Boston, 16 Eq. 490 ; 42 
L. J. Ch. 878 ; and see Pierson v. Knutsford Estates Co., 13 Q. B. D. 666 ; 32 W. E. 
451). An eaeement though preserved is not "property" within the section [Foxon 
V. Gascoigne, 9 Ch. 654 ; 43 L. J. Ch. 729). Where new trustees had been appointed 
on petition, and the costs, charges and expenses of all parties had been ordered to 
be paid, the Court refused to charge the property under the Act with the costs of 
the petition (iJ« Viney, W. N. (1868), 243; 18 L. T. 851). See also Harrison v. 
Cornwall Bail. Co., 32 W. E. 748. 
Charge ex- The solicitor is entitled under the Act to a charge upon the whole of the property 

tends to the he has recovered or preserved, and his right is not necessarily limited by the extent 
whole of the of his client's interest ; his right, in fact, is that of a salvor [Bulley v. Bulky [G. A.), 
property 8 Ch. D. 479 ; 26 W. E. 310, 638 ; Bailey v. Birchall, 2 H. & M. 371 ; 11 Jur. N. S. 

recovered. 57 ; Porter v. West, 60 L. J. Ch. 231 ; 29 W. E. 236 ; 43 L. T. 569 ; W. N. (1880), 

195 ; Greer v. Toimg, (0. A.), 24 Ch. D. 546 ; Fmden v. Carte (C. A.), 19 Ch. B. 311 ; 
30 W. E. 17 ; 45 L. T. 328 ; Charlton v. Charlton, W. N. (1883), 141) ; Berrie v. 
Howitt, 9 Eq. 1, is overruled. Where no order had been made for the payment of 
the costs out of the estate, Ery, J., held that the solicitors were only entitled to an 
order for a charge on the share of their client [Lloyd v. Jones, 27 W. E. 655 ; 40 
L. T. 514). The section only applies to the costs of the suit in which the property 
has been recovered or preserved [Ex parte Thompson, 3 L. T. 317). 
Priority of (^) The solicitor's lien under this section has priority over all charges created hy 

lien rmder the the client [Haynes v. Cooper, 33 Beav. 431 ; and see Baile v. Baile, 13 Eq. 497, 509 ; 
statute. Twynam v. Porter, 11 Eq. 181 ; The Heinrich, L. E. 3 A. & E. 605) ; even though 

the client has assigned his interest with the knowledge of the solicitor (Pitcher v. 
Arden, 7 Ch. D. 318; 47 L. J. Ch. 479 ; 26 W. E. 273; 38 L. T. Ill) ; and see 
also Faithfull v. Ewen, 7 Ch. D. 495 ; 47 L. J. Ch. 457 ; 26 W. E. 270 ; 37 L. T. 
805. As to priority as between the solicitor and an execution creditor, see Birchall 
V. Pugin, L. E. 10 C. P. 397 ; Shippey v. Grey, 49 L. J. 624 ; 28 W. E. 877 ; 42 
L. T. 673 ; The Leader, L. E. 2 A. & E. 314 ; Hamer v. GiUs, Giles v. Hamer, 11 Ch. 
D. 942; 48 L. J. Oh. 508; 27 W. E. 834; 41 L. T. 270; Hallow v. Garrold, 13 
Q. B. D. 643 ; afBrmed W. N. (1884), 231. 
Statute of (A) The Statute of Limitations will not begin to run against a solicitor in respect 

Limitations. of his claim for a charge under the Act while the suit is pending, and he remains 
the solicitor on the record [Baile v. Baile, 13 Eq. 497, 609). 



Taxation and XXIX. In every case in •wHch an attorney or solicitor has been or 

deceased luna- shall be employed to prosecute or oppose any inquiry whether a person 

tic's costs. is a lunatic, idiot, or of unsound mind, and incapable of managing 

himself or his affairs, or in or about any proceedings consequent upon 

such inquiry, and the costs of such attorney or solicitor have not been 



SOLICITOES ACT, 1860. 19 

paid in the lifetime of sueli person, it shall he lawful for the Lord 23 & 24 Vict. 

High Chancellor or the Lords Justices, or other the person or persons °-127,a8.27-29 

intrusted by Her Majesty with the care and commitment of the custody 

of the persons and estates of persons found idiot, lunatic, or of unsound 

mind {hh), -to make such and the like orders and to exercise the like 

power and authority for taxation of and for raising and payment of 

such costs after the death of such person as could or might have been 

exercised or made in his lifetime (i) ; and such orders and proceedings 

shall he as valid and effective to aU intents and purposes as if made in 

the lifetime of the lunatic : Provided always, that it shaU. not he lawful 

for the Court or judge to make any such order bat within six years 

next after the right to recover such costs, charges, and expenses shall 

have accrued {k). 

{hh) See now Jud. Act, 1875, s. 7, infra. 
_(») See 16 & 17 Vict. o. 70 (Lunacy Ilegalation Act, 1853), s. 145, wliioh pro- Costs in 
Tides that costs incurred under the Act may be charged on the lunatic's property, lunacy. 

(k) When ^ lunatic died in June, 1853, and the solicitor in the lunacy — having -Trrit- • 
obtained an order for taxation of his costs in the lunacy matter in February, 1854, Witlun six 
and completed such taxation in February, 1855 — in October, 1860, presented a peti- y^^"^^- 
tion for an order to charge the lunatic's estate under this section, it was held by 
L. J. Knight Bruce that the right to recover accrued on the death of the lunatic ; 
and by Jj. J. Turner that it accrued on the order for taxation being obtained. More 
than six years having elapsed since either of those periods, the petitioner was held 
to be barred of all remedy under the concluding proviso of the section {Ex parte 
Turner, Me Cmnming, 2 De G-. F. & J. 376 ; 9 W. E. 213). 



ATTOENEYS AND SOLICITOES ACT, 1870. 33 & 34 Vict. 

' c. 28. 



33 & 34 VICT. Cap. 28. 

An Act to amend the law relating to tlie remuneration of Attorneys 
and Solicitors. [14tli July, 1870.] 

Wheeeas it is expedient to amend the law relating to the remune- 
ration of attorneys and^ solicitors : 
Be it enacted, &c., as foUows : 

Preliminary. 
I. This Act may be cited as "The Attorneys and Sohcitors Act, Short title. 
1870." 
n. This Act shall not extend to Scotland. Extent of 

m. In the construction of this Act, unless where the context other- ^ " ' 

. .r. . -I . n Interpretation 
wise requires, the words following have the significations hereinafter of terms. 

respectively assigned to them ; that is to say, 

The words " attorney or solicitor" {a) mean an attorney, solicitor, or 

proctor (a), qualified according to the provisions of the Acts for 

the time being in force, relating to the admission and qualification 

of attorneys, solicitors, or proctors : 

" Person " includes a corporation : 

o2 



20 



ATTORNEYS AND SOLICITORS ACT, 1870. 



33 & 34 Vict, 
c. 28. 



" Client" includes any person who, as a principal or on behali of 
another person, retaias or employs, or is about to retain or employ, 
an attorney or solicitor, and any person who is or may he liable to 
pay the bill of an attorney or solicitor for any services, fees, costs, 
charges, or disbursements (6). 

(a) Attorneys and solicitors are now styled " Solicitors of the Supreme Court." 
(Judicature Act, 1873, s. 87.) Section 20 of the Act empowered solicitors to per- 
form acts appertaining to the office of proctor. This section is now repealed, and 
a more comprehensive provision to the same effect suhstituted. (Solicitors Act, 
1877, ss. 17, 23.) 

(4) NotwiljhstandiDg this definition of the word " client," the Act does not apply 
to accounts between country solicitors and their town agents (Ward v. Myre, 15 
Oh. D. 130 ; 49 L. J. Ch. 657 ; 28 "W. R. 712 j 43 L. T. 526). 



The remune- 
ration of 
attorneys and 
solicitors may 
be fixed by 
agreement. 



Amount pay- 
able under 
agreement 
not to be paid 
until allowed 
by taxing 
officer. 



Agreement 
must be 
signed by 
both, parties. 



Part I. — Agreements between Attorneys or Solicitors and their Clients. 
IV. An attorney or solicitor may make an agreement in writing (c) 
■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 dis- 
bursements 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 per-centage, 
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 in this part 
of this Act contained : Provided always, that when any such agree- 
ment 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 agree- 
ment shall not be received by the attorney or solicitor untU the 
agreement has been examined and allowed by a taxing ofBlcer of a 
Court having power to enforce the agreement, and if it shall appear to 
such taxing officer that the agreement is not fair and reasonable he 
may require the opinion of a Court or a judge to be taken thereon by 
motion or petition {d), and such Court or judge shall have power 
either to reduce the amount payable under the 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. 

(c) An agreement under the Act to take a fixed sum for costs must be in writing 
amd signed by both solicitor and client (Re Lewis, Hx parte Munro, 1 Q. B. D. 
724; 46 L. J. Q. B. 816 ; 24 "W. R. 1017 ; Se Raven, 30 "W. R. 134 ; 45 L. T. 742 ; 
and see ReFemandes, W. N. (1878) 57). An agreement to charge the client nothing 
if the action is lost, and to take nothing for costs out of any money that may be 
awarded to the client in the action, need not be in writing (Jennings v. Johnson, 
L. R. 8 C. P. 426). 

( d) The opinion of the Court cannot be required to be taken before some money 
is payable under the agreement [Re Attottteys Act, 1870, 1 Ch. D. 573 ; 44 L. J. Ch. 
47; 24 "W. R. 38). 



Saying of V. Such an agreement shall not affect the amount of, or any rights 

third parties. °^ remedies for the recovery of, any costs recoverable from the client 

by any other person, or payable to the client by any other person, and 



ATTORNEYS AND SOLICITORS ACT, 1870. 21 

any such other person may require any costs payable or recoverable by 33 & 34 Viot. 
him to or from the client to be taxed according 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 payable by the client 
to his own attorney or solicitor under the same. 

VI. Such an agreement shall be deemed to exclude any further Agreements 
claim of the attorney or solicitor beyond the terms of the agreement in f^fft^^"^^'^® 
respect of any services, fees, charges, or disbursements in relation to claims, 
the conduct and completion of the business in reference to which the 
agreement is made, except such services, fees, charges, or disburse- 
ments, if any, as are expressly excepted by the agreement. 

Vn. A provision in any such agreement that the attorney or Reservation 
solicitor shall not be liable for negligence, or that he shall be relieved biiity^or^^" 
from any responsibility to which he would otherwise be subject as negUgenee. 
such attorney or solicitor, shall be wholly void. 

V 1 IT. No action or suit shall be brought or instituted upon any such Examination 
agreement ; but every question respecting the validity or effect of any ^gnt of°'^*'^' 
such agreement may be examined and determined, and the agreement agreements, 
may be enforced or set aside, without suit or action, on motion or peti- 
tion of any person, or the representative of any person, a party to such 
agreement, or being or alleged to be liable to pay, or being or claiming 
to be entitled to be paid, the costs, fees, charges, or disbursements in 
respect of which the agreement is made, by the Court in which the 
business, or any part thereof, was done, or a judge thereof, or if the 
business was not done in any Court, then where the amount payable 
under the agreement exceeds fifty pounds, by any superior Court of 
law or equity, or a judge thereof, and where such amount does not 
exceed fifty pounds, by the judge of a County Court which would have 
jurisdiction in an action upon the agreement (e). 

{«) This section is intended to prevent actions to recover the remuneration agreed 
upon in lieu of costs when the work has been done, and does not apply to the case 
of an action for refusing to allow the solicitor to do the work and earn the remune- 
ration [Reea v. Williams, L. R. 10 Ex. 200 ; 44 L. J. Ex. 116 ; 23 W. R. 5, 50 ; 32 
L. T. 462). 

IX. Upon any such motion or petition as aforesaid, if it shall appear Improper 
to the Court or judge that such agreement is in aU respects fair and ^^^"^^ 
reasonable between the parties, the same may be enforced by such aside. 
Court or judge by rule or order in such manner and subject to such 
conditions, if any, as to the costs of such motion or petition as such Court 
or judge may think fit ; but if the terms of such agreement shall not 
be deemed by the Court or judge to be fair and reasonable, the same 
may be declared void, and the Court or judge shall thereupon have 
power to order such agreement to be given up to be cancelled, and 
may direct the costs, fees, charges, and disbursements incurred or 



22 



ATTORNEYS AND SOLICITORS ACT, 1870. 



33 & 34 Viot. 
c. 28. 



Agreements 
may be re- 
opened after 
payment in 
Bpeoial cases. 



Prohibition 
of certain 
stipulations. 



Not to give 
validity to 



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 or judge may also make such order 
as to the costs of and relating to such motion or petition, and the pro- 
ceedings thereon, as to the said Court or judge may seem fit. 

X. When the amoimt agreed for under any such agreement has 
been paid by or on behalf of the client, or by any person chargeable 
■with or entitled to pay the same, any Court or judge having jurisdic- 
tion to examine and enforce such an agreement may, upon application by 
the person who has paid such amount, within twelve months after the 
payment thereof, if it appears to such Court or judge that the special 
circumstances of the case require the agreement to be re-opened, re- 
open the same, and order the costs, fees, charges, and disbursements 
to be taxed, and the whole or any portion of the amount received by 
the attorney or solicitor to be repaid by him, on such terms and condi- 
tions as to the Court or judge may seem just. 

"Where any such agreement is made by the client in the capacity of 
guardian, or of trustee under a deed or will, or of committee of any 
person or persons whose estate or property will be chargeable with 
the amount payable under such agreement, or with any part of such 
amount, the agreement shall before payment be laid before the taxing 
officer of a Court having jurisdiction to enforce the agreement, and 
such officer shall examine the same, and may disallow any part 
thereof, or may require the direction of the Court or a judge to be 
taken thereon by motion or petition ; and i£ in any such case the client 
pay the whole or any part of the amount payable under the agree- 
ment, without the previous aUowauce of such officer or Court or judge 
as aforesaid, he shall be liable at any time to account to the person 
whose estate or property is charged with the amount paid, or with 
any part thereof for the amount so charged ; and if in any such case 
the attorney or solicitor accept payment without such allowance, any 
Court which would have had jurisdiction to enforce the agreement may, 
if it think fit, order him to refund the amount so received by him 
under the agreement. 

XI. Nothing in this Act contained shall be construed to give validity 
to any purchase by an attorney or solicitor of the interest, or any part 
of the interest, of his client in any suit, action, or other contentious 
proceeding to be brought or maintained, or to give" validity to any 
agreement by which an attorney or solicitor retained or employed to 
prosecute any suit or action, stipulates for payment only in the event 
of success in such suit, action, or proceeding (/"). 

(/) It seems that an agreement giving the solicitor in case of success what is 
equivalent to one-tenth of the property recovered, is void for champerty (per 
Jessel, M. R. ; lie Attorneys Act, 1870, 1 Ch. D. 573 ; 44 L. J. Ch. 47 ; 24 W R 
38). But an agreement to charge the client nothing if he lost the action, and to 
take nothing for costs out of any money recovered in the action, is good (Jenninga v 
Johmon, Ii. R. 8 C. P. 425). 

XII. Nothing in this Act contained shall give validity to any 



ATTORNEYS AKD SOLICITORS A.CT, 1870. 23 

disposition, contract, settlement, conveyance, delivery, dealing, or 33 & 34 Viot. 
transfer, which, may be void or invalid against a trustee or creditor °- ^^- 

in bankruptcy, arrangement, or composition, under the provisions of contracts, &c. 

the laws relatina: to bankruptcv. '"^l''^ may be 

YT-ry -vTTi void m bank- 

-X-lii. Wnere an attorney or solicitor has made an agreement with ruptoy. 
his client is pursuance of the provisions of this Act, and anything Provision in 
has been done by such attorney or solicitor under the agreement, and or^noapacW 
before the agreement has been completely performed by him, such of the 
attorney or solicitor dies or becomes incapable to act, an application ***°'^"^y- 
may be made to any Court which would have jurisdiction to examine 
and enforce the agreement by any party thereto, or by the repre- 
sentatives of any such party, and such Court shall thereupon have the 
same power to enforce or set aside such agreement, so far as the same 
may have been acted upon, as if such death or incapacity had not 
happened ; and such Court, if it shall deem the agreement to be in all - 
respects fair and reasonable, may order the amount due in respect of 
the past performance of the agreement to be ascertained by taxation, 
and the taxing officer in ascertaining such amount shall have regard 
so far as may be to the terms of the agreement, and payment of the 
amount found to be due may be enforced in the same manner as if 
the agreement had been completely performed by the attorney or 
solicitor. 

XIV. If, after any such agreement as aforesaid shall have been As to change 
made, the client shall change his attorney or solicitor before the con- after aaxee- 
clusion of the business to which such agreement shall relate (which ment. 

he shall be at liberty to do notwithstanding such agreement), the 
attorney or solicitor, party to such agreement, shall be deemed to 
have become incapable to act under the same within the meaning of 
section thirteen of this Act; and upon any order being made for 
taxation of the amount due to such attorney or solicitor in respect of 
the past performance of such agreement, the Court shall direct the 
taxing master to have regard to the circumstance under which such 
change of attorney or solicitor has taken place ; and, upon such taxa- 
tion, the attorney or solicitor shall not be deemed entitled to the full 
amount of the remuneration agreed to be paid to him unless it shall 
appear that there has been no default, negligence, improper delay, or 
6ther conduct on his part affording reasonable ground to the client for 
such change of attorney or solicitor. 

XV. Except as in this part of this Act provided, the bill of an Agreements 
attorney or solicitor for the amount due under an agreement made m g^g^pt from 
pursuance of the provisions of this Act shall not be subject to any taxation. 
taxation, nor to the provisions of the Act of the sixth and seventh 
Victoria, chapter seventy-three (g). and the Acts amending the same 
respecting the signing and delivery of the bill of an attorney or 
solicitor. 

(y) As to this Act, see ante, p. 1, et seq. 



24 



ATTORNEYS AND SOLICITOUS ACT, 1870. 



33 & 34 Vict. 
0. 28. 

Security may 
be taken for 
f atiire costs. 

Interest may 
be allowed on 
taxations in 
respect of dis- 
bursements 
and advances. 



Taxing officer 
to have regard 
to character 
of services. 



Revival of 
order for 
payment of 
costs. 



Section not 
retrospective. 

"Person 

interested." 



Pabt II. — General Provisions. 

XVI. An attorney or solicitor may take security from his client for 
his future fees, charges, and disbursements, to be ascertained by 
taxation or otherwise. 

XVTI. Subject to any general rules or orders hereafter to be made 
upon every taxation of costs, fees, charges, or disbursements, the 
taxing officer may allow interest at such rate and from such time as he 
thinks just on moneys disbursed by the attorney or solicitor for his 
client, and on moneys of the client in the hands of the attorney or 
solicitor, and improperly retainied by him. 

XVIII. Upon any taxation of costs, the taxing officer may, in 
determining the remuneration, if any, to be allowed to the attorney 
or solicitor for his services, have regard, subject to any general rules 
or orders hereafter to be made, to the skill, labour, and responsibility 
involved. 

XIX. Whenever any decree or order shall have been made for pay- 
ment of costs in any suit, and such suit shall afterwards become abated, 
it shall be lawful for any person interested under such decree or order 
to revive such suit, and thereupon to prosecute and enforce such decree 
or order, and so on from time to time as often as any such abatement 
shall happen (A). 

(A) The section is not retrospective (Doggettr. Eastern Cottnties My., 6 Oh. 474 ■ 
19 W. R. 497). 

Solicitors to -whom costs have been ordered to be paid are not "persons interested" 
■within this section {Swnter v. Wortley, W. N. (1873), 4). The legal personal repre- 
sentative of a deceased person is entitled to an order ; see ffawks v. JSawks, 1 P D 
137 ; 45 L. J. P. D. & A. 41 ; 24 W. R. 489 ; 34 L. T. 659. 



7&8Vict. LANDS CLAUSES CONSOLIDATION ACT, 1845. 

7 & 8 VICT. Cap. 18. 

An Act for consolidating in one Act certain Provisions usually ii^ 
serted in Acts authorizing the taking of Lands for Undertakings 
of a Public Nature. [8th May, 1845.] 

SS. I.— rV. ; LXIX.— LXXXVII. 

Whereas it is expedient to comprise in one general Act sundry 
provisions usually introduced into Acts of Parliament relative to the 
acquisition of lands required for undertakings or works of a public 
totl pM^sfd?"^ nature, and to the compensation to be made for the same, and that as 
well for the purpose of avoiding the necessity of repeating such pro- 
visions in each of the several Acts relating to such undertakings as for 
ensuring greater uniformity in the provisions themselves ; be it enacted, 
&c., that this Act shall apply to every undertaking authorized by any 



Act to apply 
to all under- 
takings au- 
thorized by 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 25 

Act which, shall hereafter be passed, and which shall authorize the 7 & 8 Vict. 
purchase or taking of lands for such undertaking, and this Act shall °-18. ss. 1—4. 
be incorporated with such Act ; and all the clauses and provisions of 
this Act, save so far as they shall be expressly varied or excepted by 
any such Act, shall apply to the undertaking authorized thereby, so far 
as the same shall be appHoable to such undertaking, and shall, as well 
as the clauses and provisions of every other Act which shall be incor- 
porated with such Act, form part of such Act, and be construed together 
therewith as forming one Act. 

With respect to the construction of this Act and of Acts to be incor-i Interpreta- 
porated therewith, be it enacted as foUows : J[°^! "^ *'^'^ 

H. The expression "the special Act," used in this Act, shall be nspgciai 
construed to mean any Act which shall be hereafter passed which shall Act : " 
authorize the taking of lands for the undertaking to which the same 
relates, and with which this Act shall be so incorporated as aforesaid ; 
and the word "prescribed," used in this Act in reference to any matter "prescribed:" 
herein stated, shall be construed to refer to such matter as the same 
shall be prescribed or provided for in the special Act, and the sentence 
in which such word shall occur shall be construed as if, instead of the 
word " prescribed," the expression " prescribed for that purpose in the 
special Act " had been used ; and the expression " the works " or "the "the works:" 
undertaking " shall mean the works or undertaking, of whatever 
nature, which shall by the special Act be authorized to be executed ; 
and the expression "the promoters of the undertaking" shall mean "promoters 
the parties, whether company, undertakers, commissioners, trustees, °atin^^° ^^' 
corporations, or private persons, by the special Act empowered to 
execute such works or undertaking. 

TTT . The following words and expressions, both in this and the Interpreta- 
special Act, shall have the several meanings hereby assigned to them, ^^J^he 
unless there be somethiug either in the subject or context repugnant special Act : 
to such construction ; (that is to say), 

"Words importrug the singular number only shall include the plural Number : 
number, and words importing the plural number only shall in- 
clude the singular number : 
Words importing the masculine gender only shall include females : Grender: 
The word "lands" shall extend to messuages, lands, tenements, "Lands:" 

and hereditaments (a) of any tenure : 

The word " lease " shall include an agreement for a lease : " Lease : " 

The word " month " shall mean calendar month : " Month : " 

The expression " superior Courts" shall mean her Majesty's superior " Superior 

Courts of Eecord at Westminster or Dublin, as the case may Courts:" 

require : 
The word " oath "■ shall include affirmation in the case of Quakers, " Oath : " 
or other declaration lawfully substituted for an oath in the ease of 
any other persons exempted by law from the necessity of taking 

an oath : 
The word "county" shall include any riding or other like division "County: " 



26. 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 



7 & 8 Vict, 
u. 18, as. 1—4. 

"the 
sheriff:" 



"the clerk of 
the peace :" 



" Justices : ' 



" Two jus- 
tices :" 



"Owner: 



'The Bank: 



" Owner." 



Short title of 
the Act. 



of a county, and shall also include county of a city or county of a 
town: 

The word "sheriff" shall include under-sheriff, or other legally 
competent deputy ; and where any matter in relation to any lands 
is required to be done by any sheriff or by any clerk of the peace, 
the expression "the sheriff," or the expression "the clerk of the 
peace," shall in such case be construed to mean the sheriff or the 
clerk of the peace of the county, city, borough, liberty, cinque 
port, or place where such lands shall be situate ; and if the lands 
in question, being the property of one and the same party, be 
situate not wholly in one county, city, borough, liberty, cinque 
port, or place, the same expression shaD. be construed to mean the 
sheriff or clerk of the peace of any county, city, borough, liberty, 
cinque port, or place, where any part of such lands shall be 
situate : 

The word " justices " shall mean justices of the peace acting for the 
county, city, liberty, cinque port, or place where the matter re- 
quiring the cognizance of .any such justice shall arise, and who 
shall not be interested in the matter; and where such matter 
shall arise in respect of lands being the property of one and the 
same party, situate not only In any one county, city, borough, 
liberty, cinque port, or place, the same shall mean a justice acting 
for the county, city, borough, liberty, cinque port, or place where 
any part of such lands shall be situate, and who shall not be 
interested in such matter ; and where any matter shall be autho- 
rised or required to be done by two justices, the expression "two 
justices " shall be understood to mean two justices assembled and" 
acting together : 

"Where under the provisions of this or the special Act, or any Act 
incorporated therewith, any notice shall be required to be given 
to the owner of any lands, or where any act shall be authorised or 
required to be done with the consent of any such owner, the word 
" owner " (J) shall be understood to m.ean any person or corpora- 
tion who, under the provisions of this or the special Act, would be 
enabled to sell and convey lands to the promoters of the under- 
taking : 

The expression "the Bank" shall mean the Bank of England where 
the same shall relate to monies to be paid or deposited in respect 
of lands situate in England, and shall mean the Bank of Ireland 
where the same shall relate to monies to be paid or deposited in 
respect of lands situate in Ireland. 

(a) The power to purchase lands was held to include power to purchase a rent 
chaige (-Re Brewer, 1 Ch. D. 409). 

(J) As to the meaning of the word ' ' owner ' ' in the Act, see post, note (a:) to s. 76, 
p. 36. 

IV. And be it enacted, that in citing this Act in other Acts of Par- 
liament, and in legal instruments, it shall be sufficient to use the 
expression "The Lands Clauses Consolidation Act, 1845." 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 27 

. ' « 7 & 8 Viot. 

Application of Compensation. o. 18 s. 69-87. 

And with, respect to tlie purdiase-money or eompensation coming to ^ T 
parties having limited interests, or prevented from treating, or not money pay- 
making title, be it enacted as foUo-ws : ^^^? to parties 
T -vT-v Tj! ^ under dia- 
liXlX. l± the purchase-money or compensation which shall be pay- ability 

able in respect of any lands or any interest therein, purchased or taken f "JJj'^^'i^t, 

by the promoters of the undertaking from amy corporation, tenant for deposited in 

ILEe or in tail, married woman seised in her own right or entitled to *^^ Bank. 

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 permanent damage to any such lands, amount to or exceed the 

sum of two hundred pounds, the same shall be paid into the bank (c), 

in the name and with the privity of the Accountant-General of the 

Court of Chancery in England, if the same relate to lands in England 

or Wales, or the Aceountant-G-eneral of the Court of Exchequer in 

Ireland if the same relate to lands in Ireland, to be placed to the 

account there of such Accountant-General ex parte the promoters of the 

undertaking (describing them by their proper name), in the matter of 

the special Act (citing it), pursuant to the method prescribed by any 

Act for the time being in force for regulating monies paid jnto the said 

Courts ; and such monies shall remain so deposited 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 {d ), or the discharge Application 
of any debt or incumbrance affecting the land in respect of ^ "'"^^^ 
which such money shall have been paid, or affecting other lands 
settled therewith to the same or the like uses, trusts, or pur- 
poses (e) ; 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 sub- 
stituting others in their stead, in such manner as the Court of 
Chancery shall direct {jr) ; or 
In payment to any person becoming absolutely entitled to such 
money (A). 

By the Settled Land Act, 1882, s. 32, it is provided that where, under any Act 
incorporating or applyingf, wholly or in part, the Lands Clauses Consolidation Acts, 
1845 1860, and 1869, money is at the commencement of that Act in Court, oris 
afterwards paid into Court, and is liable to be laid out in the purchase of land to be 
made subject to a settlement, then, in addition to any mode of dealing therewith 
authorized by the Act under which the money is in Court, that money may be in- 
vested or applied as capital money arising under the Settled Land Act, on the like 
terms, if any, respecting costs and other things, as nearly as oiromustauces admit, 
and (notwithstanding anything in the Settled Laud Act) according to the same 



28 



LANDS CLAUSES CONSOLIDATION ACT, 1846. 



7 & 8 Viot. procedure, as if the modes of investment or application authorized by the Settled 
0. 18 s. 69-87. Land Act •were authorized by the Act under which the monoy is in Court. This 

' section and sect. 69 of the Lands Clauses Act are to be read together {Re Byron, 23 

Ch. D. 171 ; and see lie Lytton, W. N. (1884), 193). As to investment under this 
provision, see the Settled Land Act, 1882, s. 21, infra. 
Payment into (c) It is provided by the Supreme Court Funds Rules, 1884, r. 39, infra, that 
Court. money paid into Court pursuant to sect. 69, "in respect of lands in England or 

Supreme "Wales, shall be placed in the books at the Pay OflBce to the credit of Ex parte the 

Court Funds Promoters of the undertaking, in the matter of the Special Act (citing it), and some 
Rules 1884 words shall be added in each case briefly expressive of the nature of the disability 
J. gg ' 'to sell and convey, by reason of which the money shall be so paid in, which par- 

ticulars shall be stated in the request for the direction to receive the money." 
Accountant- The duties of the Accountant-General of the Court of Chancery are now per- 
Greueral. formed by the Paymaster-General ; see the Chancery Funds Act, 1872, 35 & 36 

Viet. 0. 44, infra. 
When dis- Payment into Court under this section may be dispensed with by the Court where 

pensed with, the money is immediately required to be paid to another account, e. g. to a lunatic's 
account (Re Milnes, 1 Ch. D. 28) ; and see Jie BucMngham, 2 Ch. D. 690. 

Where the company, instead of paying the purchase -money into Court, paid it 
to the vendors, the latter were, on motion, ordered to pay it into Court for the 
purpose of interim protection [London andN. W. Railway v. Corporation of Lancaster, 
15 Beav. 22 ; and see Re London, Brighton, and South Coast Railway, 4 W. R. 315). 
Executors. The company is not entitled to pay the money into Court when there are execu- 

tors to whom it is payable {Newton v. Metropolitan Railway, 8 Jur. N. S. 738). 
Infant. Payment into Court under this section of the purchase-money of land belonging 

to an infant does not make the infant a ward of Court {Ex parte Brewer, 2 Dr. & S. 
552). 
Purchase- Money paid into Court under section 69 remains impressed with the character of 

money not realty {Eelland v. Fulford, 6 Ch. D. 491 ; Re Barrop, 3 Drew. 726 ; Re Bagot, 10 

converted into W. R. 607 ; Re Taylor, 9 Hare, 596) ; secus where the land is taken from vendors 
personalty. competent to convey under section 76 ; see note {a) to section 78, post, p. 36 ; and Re 
Stewart, 1 Sm. & G. 32 ; Re Sorner, 5 De G. & Sm. 483 ; Midland Railway Company y. 
Oswin, 1 CoU. 74 ; Dixie v. Wright, 32 Beav. 662, where accumulations of dividends 
on a fund paid in under this section were held to pass under a will as personalty ; 
Re Skegg, 13 W. E. 567 ; Ex parte Hardy, 30 Beav. 206. But see Re Manchester and 
Southport Railway Company, 19 Beav. 365. 
Interest not As soon as the money is paid into the Bank, interest ceases to be payable by the 

payable by company {Lewis v. South Wales Railway Company, 1 Hare, 113), unless there is a special 
company. agreement. In Ex parte Earl of Sardwicke, 1 De G. M. & G. 297, where the com- 

pany were ordered to pay interest under a special agreement, it was by consent 
agreed that no objection should be taken for want of jurisdiction, but that the 
question should be decided as if a biU had been filed. See Re Divers, 1 Jur. N. S. 
995 ; Chambers y. White, 14 Jur. 1129 ; Re Marylehone Improvement Act, 19 W. R. 
1058. 
Redeeming (<^) A tenant for life, who has redeemed the land-tax, will be allowed to reimburse 

land tax. himself out of the purchase -monies paid into Court {Ex parte Northwick, 1 Y. & Coll. 

Ex. 166) ; and see Re London, Brighton^ South Coast Railway, 18 Beav. 608. 

" Discharge (*) The following applications of purchase-money have been held to be within 

of any debt tliis provision : — (But see now Settled Land Act, 1882, s. 32.) Paying off bonds or 

or incum- mortgages given by a corporation for repayment of money borrowed for sanitary 

brance." purposes {Re Deriy Municipal Estates, 3 Ch. D. 289 ; and see Ex parte Corporation of 

Cambridge, 6 Ha. 29 ; 5 Ely. Ca. 204) ; buying up leases {Ex parte Corporation of 

Sheffield, 21 Beav. 162 ; 25 L. J. Ch. 687 ; Ex parte Corporation of London, 5 Eq. 418; 

37 L. J. Ch. 371 ; Re Marquis Townshendh Estates, W. N. (1882), 7) ; redeeming 

a quit rent {Ex parte Studdert, 6 Ir. Ch. Rep. 53 ; Ex parte Lord Leconjield, Ir. R. 

8 Eq. 669) ; discharging expenses incurred under statutory powers and expressly 

charged on the land {Ex parte ^Queen's College, 14 Beav. 169, n. ; Ex parte Lockwood, 

14 Beav. 168 ; Re Davis's Estate, 3 De G. & J. 144 ; 27 L. J. Ch. 712). But a loan 

from the Governors of Queen Anne's Bounty {Ex parte Rector ofGrimoldby, 2 Ch. D. 

226), or a rent-charge charged on glebe lands in favour of a Land Improvement 

Company {Ex parte Rector of Kirksmeaton, 20 Ch. D. 203), or advances obtained by 

a tenant for life under a Drainage Act {Ex parte Studdert, 6 Ir. Ch. 53), wiU not be 

discharged out of the fund. 

" Settled The word " settled " in this clause simply means " standinij limited " {Kelland v. 

therewith." Fulford, 6 Ch. D. 491). ^ 

Investment, (/) '^^^^ t^s provision money paid in respect of freeholds {Re Cann, 15 Jur. 3) 

in land, what °^ leaseholds {Re Liverpool Docks, 1 Sim. N. S. 202) may be laid out in the purchase 

ia • of copyholds ; and money paid in respect of leaseholds may be laid out in the 

' purchase of freeholds {Re Parker, 13 Eq. 495). But purchase-money of freeholds 

and copyholds will not be laid out in the purchase of leaseholds {Re Lancashire and 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 29 

Yorkshire Sy., 2 W. R. 667 ; S. C. mm. Re Macaulay, 23 L. J. Ch. 815) ; see how- 7 & 8 Viot. 
ever Se Sehoboth Chapel, 19 Eq. 180 ; Ex parte Trinity Coll. Cambridge, 18 L. T. 849. ^. 18, ». 69-87. 

Enfranohisement of copyholds is a purchase of land within the Act {Dixon v. 

Jackson, 25 L. J. Ch. 588 ; JJc Cheshunt College, 1 Jur. N. S. 995) ; and so ia an 
investment in ground rents (Ee Mason, W. N. (1872), 77) ; nor need the land pur- 
chased be within the jurisdiction of the Court {He Taylor, 40 L. J. Ch. 454, where 
it was in the Isle of Man). 

But the money cannot be invested in the purchase of an equity of redemption what is not. 
{Ex parte Craven, 17 L. J. Ch. 215 ; Ex parte Fortadown, Ir. R. 10 Eq. 368). 

The money in Court may be invested in the purchase of land, although the Where 
applicants are absolutely entitled {Re Jones, 39 L. J. Ch. 190 ; 18 W. R. 312 ; "W. N. applicants 
(1870), 7 ; Re Parker, 13 Eq. 495). absolutely 

The money in Court may be expended in erecting new buildings on other parts of entitled, 
the settled land, whether in addition to those existing before or in substitution for Money may 
such as have become ruinous, provided that (1) it is beneficial to the estate, and (2) be expended 
the remaindermen do not object ; but it cannot be applied in ordinary repairs and in building, 
improvements {Re Leigh, 6 Ch. 887 ; Drake v. Trefusis, 10 Ch. 364 ; Re Speer, 3 
Ch. D. 262 ; Ex parte Rector of Rolywell-eum- Needingworth, 27 W. R. 707 ; ReAldred, 
21 Ch. D. 228 : Ex parte Shaw, 4 Y. & 0. 506 ; JJ« Dimmer, 2 De C. J. & S. 515 ; 
Re Wight, 6 W. R. 718) ; and see also Re London and North- Western Ry. Act, 1 Ch. 
596 ; Re Incumbent of Whitfield, 1 J. & H. 610 ; Ex parte Melward, 27 Beav. 571 ; 
Re Johnson, 8 Eq. 348 ; Re Clitheroe's Trusts, 17 W. R. 345 ; Re Rudyerd, 2 GifE. 394. 

So money representing glebe land may be expended in building or improving a Purchase- 
- rectory-house, or in erecting farm buildings {Re Incumbent of Whitfield; Ex parte money of 
Rector of Claypole, 16 Eq. 574; Ex parte Rector of Shipton-under- Wychwood, 19W.R. glebe land. 
549). In Re Lymington Chapel, W. N. (1877), 226, part of the fund in Court was laid 
out in the purchase of land and buildings, and the remainder applied in converting 
the bmldings into a dwelling-house for the minister or chapel keeper. As to build- 
ings generally, see now the Settled Land Act, ss. 21, 25 and 32, infra. 

The money may be applied in making improvements which are a permanent Improve- 
addition to the estate {Re Leslie, 2 Ch. D. 185 (drainage) ; Re Croker, W. N. (1877) ments. 
38 (water supply) ; and see Re Vicar of Queen Camel, 1 1 W. R. 503 ; Re Buckingham- 
shire Ry., 14 Jur. 1065) ; but not it would seem in making roads {Re Belfast Water 
Commissioners, Ir. R. 5 Eq. 63 ; Re Venour's Settled Estates, 2 Ch. D. 522) ; see now, 
however, the Settled Land Act, ss. 21, 25, and 32, infra. 

Where the money is to be laid out in bvulding, it wUl not in general be paid out 
of Court till the buildings are finished {Re Dummer, 2 De G-. J. & S. 515 ; 11 Jur. 
N. S. 615 ; Ex parte Rector of Shipton-under- Wychwood, 19 W. R. 549). 

It seems doubtful whether the Court wUl apply the fund in recouping a limited Recouping 
owner money which he has expended without its previous sanction on other parts of limited 
the estate ; see Williams v. Aylesbury and Buckingham Ry., 9 Ch. 684 ; Re Leigh, 6 owner. , 
Ch. 887; Ex parte Rector of Sartington, W. N. (1875) 40 ; 23 W. R. 484 ; Re Stock, 
42 L. T. 46 ; W.N. (1880), 11 (where, however, the money was spent before the land 
had been taken). But, nevertheless, this has been done in some cases ; see Ex parte 
Rector of Gamston, 1 Ch. D. 477 ; Ex parte Rector of Solywell-cum-Needingworth, 27 
W. R. 707 ; Re Partington, 11 W. R. 160 ; 1 N. R. 177 ; Re Aldred, 21 Ch. D. 228 ; 
Re Davis, 3 De G. & J. 144 ; 4 Jur. N. S. 1029. 

Eor the appKoation of compensation money in the case of common lands, see Common 
Nash V. Coombs, 6 Eq. 51 ; Fox v. Amhurst, 20 Eq. 403 ; Austin v. Amhurst, 7 Ch. lands. 
D. 689 ; and as to lands in which freemen have an interest, see Ex parte Mayor of 
Lincoln, 21 L. J. Ch. 621. -d . j. 

In a proper case the Court will sanction the investment of the money paid in, Re-mvest- 
together with other trust-monies, in the purchase of estates of greater value {Ex ment m 
parte Newton, 4 T. & C. Ex. 518). la'ids of 

On application for re-investment in land, the Court approves of the investment greater value. 
either immediately or after inquiry, and then directs an inquiry whether a good title Reference to 
can be made ; see Daniell, p. 1039 et seq. But the Court may dispense with the conveyancing 
investigation of the title {Re Blomefield, 25 W. R. 37 ; W. N. (1876) 242), or with counsel, 
the reference to the conveyancing counsel {Re Lapworth, W. N. (1879) 37). 

{a) Providing temporary buildings until a new hospital should be built is a proper Buildings 
re-investment of part of the purchase-money of a hospital {Re St. Thomas's Sospital, taken or 
11 W. R. 1018). . X. J J injured. 

Buildings may be " iajured " by bemg severed irom a farm so as to be rendered 
useless, although they sustain no structural damage {Ex parte MeVward, 27 Beav. 

The Court of Chancery is now the Chancery Division of the High Court (Jud. Court of 
Act, 1873, ss. 33, 34). .... v. • ^ i, ^Ihancery. 

(A) The application for payment out or re-mvestment must be accompanied by an Payment to 
afedavit of no incumbrances, see R. S. C. 1883, Ord. LII. r. 18, which provides that person abso- 
iu the case of applications under Acts of Parliament directing the purchase-money lately enti- 
tled. 



30 

7 & 8 Vict. 
0. 18,8.69-87. 

Applicants to 
make affidavit 
as to inoum- 
brances. 



Affidavit of 
no settlement. 

Payment out 
to charity 
trustees. 



Payment out 
to trustees. 



Dowress. 

Tenant in 
tail must 
execute 
disentailing 
assurance. 

Land be- 
longing to a 
married 



Statute of 
Limitations. 



Transfer to 
anotbei 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 

of any property sold to be paid into Court, any persons 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 olaun 
made by any other person, to the sum claimed, or to any part thererf, or it the 
petitioners are aware of any such right or claim, they must m such affidavit state 
or re^r to and except the same. „xro_/ii7i «n w 

See as to the necessity of the affidavit. Ex parte Gramge, 3 T. & C. Jix. bi ; ±.x 
parte Bollick, 4 Ely. Ca. 498. a x v .i li. -.i. , r. 

The affidavit must be made though income only is proposed to be dealt with (ia; 
parte Warden of Winchester College, 14 "W. R. 788 ; W. N. (1866) 208 ; Re Milne, 8 
L. T. 199, overruling Ex parte Baroness of Braye, 9 Hare, App. vii). 

An affidavit by one of several petitioners is sufficient [Re Vale of Neath Railway, 
W. N. (1866) 78). The tenant for life being infirm, and the remaindermen being 
infants the order for payment of dividends to the tenant for life was made on the 
affidavit of the executors [Re Smith's Leaseholds, W. N. (1866), 290 ; 14 W. B. 949 ; 
and see Re Batty, W. N. (1877) 212) ; and in another case on the affidavit of the 
petitioner's solicitor {Re Balsey, W. N. (1870) 68), and on a petition by trustees of 
a charity the affidavit of their clerk was sufficient {Re Edward VI. Almshouses, 16 
W. E. 841). 

The affidavit is necessary, although the application is by a large public body for 
interim investment and paymentof dividends {ReByron, W. N. (1883) 67) ; but see 
Re Magdalen Coll., "W. N. (18801 150. 

Where a fund in Court arises from a settled estate, and a tenant in tail who has 
barred the entail applies for payment, an affidavit of no incumbrances must be 
made (Seton, 1504 ; Thornhill v. Millbank, 12 W. E. 523). 

Where a married woman would be entitled there must be an affidavit of no settle- 
ment ; Supreme Court Funds Eules, 1884, r. 61, infra, and see ibid. rr. 44 — 68, as 
to payment out of Court generally. 

Payment to trustees has been allowed in the case of trustees for a charity {Ex 
parte Trustees of Tid St. Giles' Charity, 17 W. E. 758 ; W. N. (1809) 116 ; Re 
Faversham Charities, 10 W. E. 291, where the trustees had a power of sale ; Re 
Spurstowe's Charity, 18 Eq. 279). But in Exparte the Governors, fc. of Norfolk Clergy, 
W. N. (1882), 53, where there was no power of sale, Fry, J. declined to follow Re 
Spurstowe's Charity. As to dispensing with the consent of the Charity Commiss- 
ioners, see Re Lister's Sospital, 6 De G-. M. & Gr. 184 ; Re William of Xyngeston's 
Charity, 30 W. E. 70 ; W. N. (1881) 143 ; and nute to s. 1 of Trustee Belief 
Aot, post, p. 51. 

The money may be paid out to trustees with a power of sale {Re Gooch, 3 Ch. D. 
742 ; Re Sotson, 7 Ch. D. 708 ; Re Thomas, W. N. (1882) 7 ; 30 W. E. 244 ; Re Ward, 
28 Ch. D. 100 ; but see Re Sowry, 8 Ch. 736) ; whether the power is presently ex- 
eroiseable or not {Re Evans, 14Ch.D. 511; Re Vestry of St. Zuke's,W.'S. nSSO) 58). 
See further as to payment out to trustees. Re Illman, 39 L. J. Ch. 760 ; 19 W. E. 962 ; 
W. N. (1870) 189; Re Reaston, 13 Eq. 564; Re Sorwood, 3 Gr\S. 218; Re Roberts, 
7 Jut. N. S. 818 ; 9 W. E. 758 (sole trustee). Under sect. 21 of the Settled Land 
Act the money may be paid to any person empowered to give an absolute discharge ; 
see this Act, infra. The fund may also be paid out to trustees to be applied by them 
under a power of advancement {Re Curwen, W. N. (1880) 83). 

Payment out of small sums to solicitors on their undertaking to distribute them is 
often allowed; and for order to pay out to trustees "or either of them," see note to 
sect. 71, post. 

A dowress is entitled to have the value of her right of dower paid to her out of 
the fund in Court {Re Sail, 9 Eq. 179). 

Where the landtaken was entailed, the purchase-money wiU not be paid out to 
the tenant in tail unless he has executed a disentailing deed; see Re Reynolds 
(C. A.), 3 Ch. D. 61 ; Re Butler's Will, 16 Eq. 479 (Selbome, L. C.) ; Re Broadwood, 
1 Ch. D. 438 (Jessel, M. B.) ; Re Noreop, 31 L. T. 85 (V.-C. B.) ; Ex parte Smyth, 
Ir. E. 10 Eq. 66 ; the cases to the contrary are all overruled. 

Where the land belonged to a married woman it may be paid out on her consent 
in Court without an acknowledged deed {Re Robins, 27 W. B. 705 ; Re Sayes, 
9 W. E. 769 ; Ex parte Ellispn, 2 T. & C. Ex. 528 ; Pollack v. Birmingham Ry., 11 
Jur. N. S. 7 ; 13 W. B. 401 ; Knapping v. Tomlinson, 18 W. E. 604 ; W. N. (1870) 
107) ; and see Stamdering v. Sail, H Ch. D. 652 ; Wallace v. Greenwood, 16 Ch. D. 
362 ; and the Married Women's Property Act, 1882, infra. 

Payment in under the Act does not prevent the Statute of Limitations run- 
ning in favour of a person who has merely a possessory title when the land is 
taken {Re Winder, 6 Ch. D. 696 ; Re Jane Evans, 42 L. J. Ch. 357 ; and see Exparte 
Chamberlain, 14 Ch. D. 323). 

Transfer from the account to which the money was paid in to another account is 
a payment out within the Act {Melling v. Bird, 22 L. J. Ch. 699: 17 Jur. 155; 
Tipper V. Soilleux, W. N. (1875) 158 ; Re Bristol Free Grammar School, 47 L. J. Ch. 



liAI^DS CLAUSES CONSOLIDATION ACT, 1845. 31 

?/Is'nTfi\''^" T^^^^^^ ^^ ' ^^ ■^'"■''' ■'^'™'««s of SorfieU Trust, 29 "W. R. 462 ; "W. N. 7 & g Viot 
ussy lb), in oases not within the Act, and where the special Act contained no „ 18 s 69-87 
provision tor payment to persons absolutely entitled, such payment has nevertheless ' ' ' 
been ma.Ae (Me Musgrave, 6 Jur. N. S. 797 ; Ee MaccUsJUld Canal Act, 9 Jur. N. S. aorount io a 
224; iJ.^ife„, W.N. (1867)11). "^ p^a^Znt out. 

LXX. Such money may be so applied as aforesaid upon an order of Interim 
the Court of Chancery in England or the Court of Exchequer in Ire- "i^estment. 
land, made on the petition (i) of the party who would have been 
entitled to the rents and profits of the lands ia respect of which such 
money shall have been deposited ; and until the money can be so 
applied it may, upon the like order, be invested by the said Ac- 
countant-Greneral in the purchase of three per centum consolidated or 
three per centum reduced bank annuities, or in government or real 
securities {k), and the interest, dividends, and annual proceeds there- 
of (l) paid to the party who would for the time being_ have been 
entitled to the rents and profits of the land (w). 

(i) All applications for interim and permanent investment and payment of divi- 
dends under the Act, and applications for payment out .where the fund does nut 
exceed 1,000^ , are now made by summons at chambers ; see E. S. C. 1883, Ord. 
LV. r. 2 (2, 7), infra; Ex parte Maidstone JJy., 25 Ch. B. 168 ; Me'Oalton, ibid. 240 ; 
Ex parte Mayor of London, ibid. 384. 

By the rules under the Settled Land Act, 1882, r. 2, all applications to the Court Court of 
under that Act are to be made by summons in chambers ; and see infra as to these Chancery, 
rules generally. The Court of Chancery is now the Chancery Division of the High 
Court (Jud. Act, 1873, ss. 33, 34, infra). 

The duties of the Accoimtant-General are now discharged by the Paymaster Accountant- 
(Chancery Funds Act, 1872, infra). General. 

(A) The fund is cash under the control of the Court, and may be invested in any of -rrry^ . . . 
the securities authorized for the investment of funds in Court (Ex parte St. John's wnat invest- 
Colkge, Oxford, 22 Ch. D. 93, overruling Ex parte Viear of St. Mary's, 18 Ch. D. "^j ^^ 
646, and (on this point) Ex parte Sector of Kirksmeaton, 20 Ch. D. 203). auowett. 

The Court will sanction an interim investment in mortgage security [Re Smith, 9 
Eq. 178), but not if the chief clerk has reported against it [Ex parte Franklun, 1 De 
G. & Sm. 528). 

{t) Where the company are in possession, payment of the dividends to the tenant Dividends 
for life will be ordered before the conveyance [Re Symget ford's Trusts, 1 K. & J. paid before 
413). It is not the duty of the Court to go into the title of the person claiming. conveyance. 

As to the form of an order under this section in the case of a corporation sole, see p. - .±- 
Ex parte the Archbishop of Canterbury, 2 De G. & Sm. 365 ; and see Re Davenant's ^°^B°^^^°^- 
Charity, 2 W. K. 344 ; Re Pearce, 24 Beav. 491 ; Ex parte Churchwardens and Over- 
seers of Bicester, 5 Ely. Ca. 702, where the dividends were ordered to be paid " to 
the viear for the time being, and churchwardens and overseers, or either of them." 
See also Re Collins' Charity, 20 L. J. Ch. 168, cited in note to s. 71 ; Re Sow, 15 
Jur. 266, and Re Codrington, 18 Eq. 658, where payment to the secretary of a 
charity was ordered, there being no treasurer. 

Where the fund belongs to a charity the sanction of the Charity Commissioners Consent of 
to the appUcatiou is not required [Re William of Kyngeston's Charity, 30 W. E. 70; Charity Com- 
W. N. (1881) 143 ; Re Lister's Sospital, 6 De G. M. & G. 184). As to the form of missionera. 
the order for payment, &c. to private trustees, see note to s. 71, post. 

{rn) The Court cannot proceed under this section at the instance of an incum- Who may 
branoer, or annuitant, but only at the instance of the person who would have been apply for 
entitled to the rents and profits if the property bad been unsold [Ex parte Back, 2 interim iu- 
T. & J. 386) ; and see Re Hungerford, 3 K. & J. 455 ; Ex parte Cofleld, 11 Jur. N. S. vestment as 
1 ; Re Wrey, 11 Jur. N. S. 206; Ex parte Wilkinson, 3 De G. & S. 633. In Re "party en- 
Fedley's Estate, 1 Jur. N. S. 654, an order was made on the petition of the tenant titled to 
for life, and annuitants (not bound by the contract) for payment of the dividends to rents and 
the former, prefaced by an undertaking not to distrain on the lands. A remainder- profits." 
man, though plaintiff in an administration suit, was held to have no right to petition 
[Nash V. Nash, 37 L. J. Ch. 927 ; 16 W. E. 1105). Where the money was deposited 
in respect of a closed burial groxmd, the income was ordered to be paid to the person 
who would have been entitled to the burial fees [Re St. Tancras Burial Ground, 3 Eq. 
173.; Ex parte Rector of Liverpool, 11 Eq. 15 ; Ex parte Rector of St. Martin's Bir- 
'am, 11 Eq. 23). 



32 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 



7 & 8 Viot. 
C.18, 8.69-87. 

Service. 

Sums from 
20?. to 200?. 
to be de- 



l or 
paid to 
truBtees. 



Payment to 
trustees for 
time being, 
one of two 
trustees, &c. 

Charity 
trustees. 



As to the parties to be sei-ved, see Re Morris, 20 Eq. 470 ; Ex parte Staples, 1 De Gr. 
M. & G. 294 ; Re Dowling, 24 "W. R. 729 ; Seton, p. 1424. 

LXXI. If the purchase-money or compensation shall not amount to 
the sum of two hundred pounds and shall exceed the sum of twenty- 
pounds, the same shall either be paid into the Bank, and applied in 
the manner hereinbefore directed with respect to sums amounting to 
or exceeding two hundred pounds, or the same may lawfully be paid 
to two trustees (n), to be nominated by the parties entitled to the 
rents or profits of the lands in respect whereof the same shall be 
payable, such nomination to be signified by writing under the hands 
of the party so entitled ; and in case of the coverture, infancy, lunacy, 
or other incapacity of the parties entitled to such monies, such nomi- 
nation may lawfully be made by their respective husbands, guardians, 
committees or trustees ; but such last-mentioned appKcation of the 
monies shall not be made unless the promoters of the undertaking 
approve thereof and of the trustees named for the purpose ; and the 
money so paid to such trustees, and the produce arising therefrom, 
shall be by such trustees applied in the manner hereinbefore directed 
with respect to money paid into the Bank, but it shall not be necessary 
to obtain any order of the Court for that purpose. 

(») Where the land taken had been vested in trustees under the Municipal 
Corporations Act, the Court, under this section, ordered payment of the dividends 
of the investment to any two of the trustees for the time being [Be Collins' Charity, 
20 L. J. Ch. 168). In Re Clinton, 8 "W. E. 492, followed in Re Coulson, 17 L. T. 27 ; 
W. N. (1867) 233, V.-C. Wood made the order for payment to the two trustees 
" or either of them ;" and this is the proper form (Seton, p. 88). The proceeds of the 
sale of charity lands taken by a railway company were paid to the trustees of the 
charity, with the consent of the Charity Commissioners [Re Fa/versham Charities, 10 
W. R. 291), but see note at p. 30, ante. 



Sums not 
exceeding 
20?. to be 
paid to 
parties. 



Purchase- 
money under 
20?. 



All sums 
payable 
under con- 
tract with 
persons not 
absolutdy 



LXXII. If such money shall not exceed the sum of twenty 
pounds (o), the same shall be paid to the parties entitled to the rents 
and profits of the lands in respect whereof the same shall be payable, 
for their own use and benefit, or in case of the coverture, infancy, 
idiotcy, lunacy, or other incapacity of any such parties, then such 
money shall be paid for their use to the respective husbands, guardians, 
committees, or trustees of such persons. 

(o) WTiere it is probable that after re-investment of part of the sum paid in, the 
balance left will be under 20?., the Court will order that the balance, if less than 20?., 
be paid to the tenant for life {Re Lord Bgremont, 12 Jur. 618 : Re Sateman's Estate, 
21 L. J. Ch. 691). But see Ex parte Vicar of Bredicot, 5 Rly. Ca. 209, where the 
Court refused to order payment of 20?. 10s. (the balance of 200?. paid into Court for 
the purchase of land belonging to a rectory) to the rector in liquidation of extra 
costs beyond those allowed by the Act ; and in Re Eateman, 21 L. J. Oh. 691, and 
Ex parte Barrett, 19 L. J. Ch. 416, applications to allow sums over 20?. to be paid 
to the tenant for life, he undertaking to lay them out in lasting improvements, were 
refused. 

LXXIII. All sums of money exceeding twenty pounds which may 
be payable by the promoters of the undertaking in respect of the 
taking, using, or interfering with any lands, under a contract or 
agreement with any person {p) who shall not be entitled to dispose 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 33 

of such lands or of the interest therein contracted to be sold by him 7 & 8 Viet. 
absolutely for his own benefit, shall be paid into the Bank or to trustees "• 18. «■ 69-87. 
in manner aforesaid; and it shall not be lawful for any contracting entitled to 
party not entitled as aforesaid to retain to his own use any portion of 3 ^'"^ ^°*° 
the sums so agreed or contracted to be paid for or in respect of the 
taking, using, or interfering with any such lands, or in lieu of bridges, 
tunnels, or other accommodation works, or for assenting to or not 
opposing the passing of the bill authorising the taking of such lands, 
but aU such monies shall be deemed to have been contracted to be 
paid for and on account of the several parties interested in such lands, 
as well in possession as in remainder, reversion, or expectancy : Pro- 
vided 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 con- 
sidered to sustaiu, 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 (q). 

( p) See as to this section generally, Taylor v. Directors of the Chichester Railway, Section 
4 H. L. 628. applies 

These words were held to apply to the case of a landowner withdrawing his oppo- though no 
sition to the bill authorising a railway, though he never entered into any contract contract, 
as to the land eventually taken under the Act, and though the section in terms 
only speaks of a " contracting party " [Pole v. Fole, 2 Dr. & Sm. 420 ; II Jur. N. S. 
477) ; and see Ee Wilson, 9 Jur. N. S. 1043 ; 32 L. J. Ch. 191. 

(?) Costs and expenses incurred by a tenant for life which the company are not What monies 
bound to pay may be, under this section, ordered to be paid to the tenant for life, are within 
out of the purchase-money paid in [Se Aubrey, I W. E. 464 ; 1 7 Jur. 874) ; and see the section. 
Earl of Shrewsbury^. N. Staffordshire Sy . Co., 1 Eq. 693; Re Oldham, W. N. (1871), 
190 ; Me Slrathmore Estates, 18 Eq. 338 ; Bx parte Curate of Whitworth, 24 L. T. 126 ; 
"W. N. (1871), 66; Re Earl of Seikeley' s TFill, 10 Ch. 66; Re McolVs Estate, "W. N. 
(1878), 154. 

Under this section small sums will he ordered to be paid to the tenant for life, for Small sums 
his own use, as compensation for ' ' injury, inconvenience, and annoyance, ' ' sustained ordered to be 
by him ; see Ex parte Loekwood, 14 Beav. 158 ; Re Collis's Estate, 14 L. T. 352. But paid to 
in Re Duke of Marlborough, 13 Jur. 738, a company having agreed with a tenant for tenant for 
life, to pay him a sum for the benefit of himself, "or other the owner for the time life, 
being, for indemnifying him from the expenses of making a new road, &o., and as 
a compensation for the annoyance which he, or such owners as aforesaid, might 
sustain, in consequence of the construction of such railway, " the Court ordered the 
purchase-monies, after payment of the costs for making the road, to be invested, and 
refused to pay them to the tenant for life. 

It was held that upon a reference to the master, under the old practice, to inquire Damage, 
as to the title to money paid in for compensation for damage done to lands, the 
master ought to report whether the damage done be temporary or permanent {Cator 
T. Croydon Canal Company, 4 T. & C. Ex. 405). 

LXXrV. Where any purchase-money or compensation paid into the Court may 
Bank under the provisions of this or the special Act shall have been paid ^?°* ^PP^'' 
in respect of any lease for a life or lives or years, or for a life or lives and of money in 
years, or any estate in lands less than the whole fee simple thereof, or of [g^^gg° p°* 
any reversion dependent on any such lease or estate, it shall be lawful for reversions as 
the Court of Chancery in England or the Court of Exchequer in Ireland, ^^t'^„^t 
on the petition of any party interested in such money, to order that the 



34 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 



7 & 8 Vict. 
0. 18, s. 69-87. 



Apportion- 
ment — 
(1) As be- 
tween lessor 
and lessee. 



(2) As be- 
tween Buooes- 
sive owners, 
(a) Where the 
property 
taken was 
held on lease, 
and therefore 
of perishable 
nature. 
Property held 
on renewable 



Bef usal to 
renew. 



(3) Where 
property was 
let on leases, 
renewable on 
fines. 



When whole 

dividends 

allowed. 



Upon deposit 
being made 
the owners of 
the lands to 
convey, or 
in default the 
lands to vest 
in the pro- 
moters of the 
undertaking', 
upon deed 
poU being 
executed. 



same shall be laid out, invested, aecumulated, and paid in sueh manner as 
tlie 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 (r). 

(r) " Lease " includes an agreement for a lease (sect. 3). _ 

As to apportionment between lessor and lessee, where there is a doubt on the 
title of either, see Brandon v. Srandon, 2 Dr. & S. 305, and Se Wood, 10 Eq. 572. 

A yearly tenant holding over after notice to quit can claim no compensation {Sx 
parte JSTadin, 17 L. J. Oh. 421). Lessors and lessees should deal sepaiately with 
the company in respect of their interests, for the Court has no jurisdiction to 
apportion the purchase-money between them (^a; parte Ward, 2 De G-. & S. 4 ; see 
M parte Dean of Sattel, 21 L. T. (0. S.) 55). See also Ee King, 16 Eq. 521. 

When property held under a lease ia taien it often becomes a question between a 
tenant for life and remainderman how the purchase-money is to be divided. _ It 
seems to be now settled that in such a case the tenant for life is entitled to receive 
an annuity of such an amount that the payment of it will exhaust the fund in the 
number of years which the lease had to run ; see Askew v. Woodhead (C. A.), 14 
Ch. D. 27 ; 41 L. T. 670 ; 42 L. T. 567 ; Se Fhillips, 6 Eq. 250 ; Ee SeweU, 23 
L. T. 835 ; Be Money, 2 Dr. & Sm. 94 ; the cases to tiie contrary cannot now be 
relied on. As to the case gf an annuitant, see Ex parte WilMnson, 3 De G. & S. 633. 

Eor the principle on which the Court will estimate the value of a lease held on a 
contingency, see Fenny v. Fenny, 5 Eq. 227. Where settled renewable leaseholds 
have been taken the rule seems to be that if there is an unqualified trust for renewal 
the tenant for life only takes the income of the purchase-money {Ee Wood, 10 Eq. 
572 ; Maddy v. SaU, 3 Ch. D. 327 ; SoUier v. Burne, 16 Eq. 163 ; Ee Barber, 18 
Ch. D. 624 ; Ee Eanelagh, 26 Ch. D. 590) ; and see Morres v. Sodges, 27 Beav. 625, 
and Tardiff v. EoUnson, Hid. 629, n. Where trustees had neglected to renew_ a 
renewable lease which therefore determined in the lifetime of the tenant for life 
thereof under a settlement, such tenant for life was allowed the whole of the 
purchase-money, Stuart, V.-C, declining to consider, on petition, the question of 
breach of trust in not renewing [Ee Beaufoy, 1 Sm. & GifB. 20 ; 16 Jur. 1084). 

On the other hand, where property is let on renewable leases at a low rent the 
present income of the purchase-money will exceed the rent reserved, and, in such 
cases, the Court generaEy allows the persons entitled in possession so much of the 
dividends of the purdhase-money as corresponds with the amount they would have 
received if the land were unconverted, and directs the surplus to be accumulated 
and invested, with liberty to apply at the periods when the leases would be renew- 
able and the fines payable (Ex parte Dean of Gloucester, 19 L. J. Ch. 400 ; Ex parte 
Deem of Christchm-eh, 23 L. J. Ch. 149 ; Ex parte Eector of Lambeth, 4 Ely. Ca. 231 ; 
Ex parte Bishop of Winchester, 10 Hare, 137 ; Ex parte Precentor of St. Paul's, 1 K. 
& J. 538; Ex parte Dean of St. Paul's, 11 W. R. 482, which were all eases of 
ecclesiastical or college leases). The same principle applies where the company take 
land of private persons, which, is subject to a beneficial lease ; see Ee Wootton, 1 Eq. 
589 ; Ee Mette, 7 Eq. 72 ; Ee Wilkes, 16 Ch. D. 697, where the form of order is 
given. But the whole dividends have, under special oicoumstances, been allowed 
to the persons entitled in possession [Ee Dean and Chapter of Westminster, 26 Beav. 
214, where the present value of the property taken was largely increased since the 
leases were granted ; Ex pwrte Trustees of St. Thomas's Church, Bristol, W. N. 
(1870), 192 ; Ee Steward, 1 Drew. 636). 

See note to section 80, p. 42, post, as to the costs of remain d'^rmen appearing 
upon petitions under this section. 

LXXV. Upon deposit in the Bank in manner hereinbefore provided 
of the purchase-money or compensation agreed or awarded to be paid 
in respect of any lands purchased or taken by the promoters of the 
undertaking under the provisions of this or the special Act, or any 
Act incorporated therewith, the owner (s) of such lands, including in 
such term aU parties by this Act enabled to sell or convey lands, 
shall, when required so to do by the promoters of the Tindertaking, 
duly convey such lands to the promoters of the tindertakiag, of as 
they shall direct ; and in default thereof (i), or if he fail to adduce a 



liANDS CLAUSES CONSOLIDATION ACT, 1846. 35 

good title to such lands to their satisfaction, it shall be lawful for 7&8Viot. 
the promoters of the undertaking, if they think fit, to execute a deed °- ^^.s- 69-87. 
poll under their common seal if they he a corporation, or if they he 
not a corporation under the hands and seals of the promoters or any 
two of them, containing a description of the lands in respect of which 
such default shaU be made, and reciting the purchase or taking 
thereof by the promoters of the undertaking, and the names of the 
parties from whom the same were purchased or taken, and the deposit 
made in respect thereof, and declaring the fact of such default having 
been made; and such deed poU shall be stamped with the stamp 
duty which would have been payable upon a conveyance to the 
promoters of the undertaking of the lands described therein; and 
thereupon all the estate and interest in such lands of or capable of 
being sold and conveyed by the party between whom and the pro- 
moters of the undertaking such agreement shall have been come to, or 
as between whom and the promoters of the undertaking such purchase- 
money or compensation shall have been determined by a jury or by 
arbitrators or by a surveyor appointed by two justices as herein 
provided, and shall have been deposited as aforesaid, shall vest abso- 
lutely in the promoters of the undertaking, and as against such 
parties, and all parties on behalf of whom they are hereinbefore enabled 
to sell and convey, the promoters of the undertaking shall be entitled 
to immediate possession of such lands (u). 

(«) As to the meaning of '• owner," see next section and note. 

(t) See, before the passing of the Act, Sruce v. TFUUs, 11 Ad. & Ell. 463 ; S. 0. 
mm. Bath Ziver Company y. Willis, 2 Ely. Ca. 7 ; The Earl of Harborough v. Shardlow, 
2 Ely. Ca. 253 ; 7 M. & W. 87. 

(«) The lands vest without a conveyance {Bruce v. Willis). Vesting. 

LXXVI. If the owner {x) of any such lands purchased or taken by Where parties 
the promoters of the imdertaking, or of any interest therein, on tender '^^^^^V^J'^ot 
of the purchase-money or compensation either agreed or awarded to show title, or 
be paid in respect thereof, refuse to accept the same, or neglect or fail 0^'™°* ^^ 
to make out a title to such lands, or to the interest therein claimed by pnrohase- 
him, to the satisfaction of the promoters of the undertaking, or if he ^°''^?1*5 ^® 
refuse to convey or release such lands as directed by the promoters of the 
imdertaking, or if any such owner be absent from the kingdom, or cannot, 
after diligent inquiry, be found, or fail to appear on the inquiry before 
a jury, as herein provided for, it shall be lawful for the promoters of 
the undertaking to deposit the purchase-money or compensation pay- 
able in respect of such lands, or any interest therein, in the Bank, in 
the name, and with the privity of the Accountant- General* of the * ?^® ^* .^ ^^ 
Court of Chancery in England or the Court of Exchequer in Ireland, ^ i,' infra', 
to be placed, except in the cases herein otherwise provided for, to his p. 203. 
account there, to the credit of the parties interested in such lands (de- 
Bcmbing them, so far as the promoters of the undertaking can do), 
subject to the control and disposition of the said Court. 

{x) A person in possession, but showing a bad title, ia not an. "owner" within Who- is ^^ 
this section ; and therefore, where a vendor under a contract for a sixty years' ' owner 
title, faila to show more than a title for thirty-sis years, he cannot compel the (see s. 79;. 

d2 



86 



LANDS CLAUSES CONSOLIDATION ACT, 1845, 



7 & 8 Viot. company to deposit the puroliase-niouey in the Bank under this section {Douglas v. 
c. 18,8. 69-87. London and North- Western Railway Co., 3 K & J. 173; and see ^^ Pf^±f^^^f^ 



Upon deposit 
being made a 
receipt to be 
given, and 
the lands to 
vest upon a 
deed poU 
being exe- 
cuted. 



Application 
of monies so 
deposited. 



Suit by 
owners. 



Payment 
to incum- 
brancers. 

Conversion 
into per- 
sonalty. 



and Stallingers of Sunderland, 1 Drew. 184 ; Doe d. Butehinson v. Manchester, Bury, 
and Sosendale Railway Co., 14 M & W. 687 ; sub mm. Sutchinson v. East Lancashire 
Railway Co., 3 Ely. Ca. 748). But a surviving partner selling the property by virtue 
of his duty to wind up the partnership, is an owner within the section {Douglas v. 
London and Mrth- Western Railway Co.). Comp. as to the meaning of the word 
owner, Russell v. Shenton, 3 Q. B. 449, and Chauntler-v. Robinson, 4 Exch. 163 ; and 
see also as to this section generally, JEr parte Winder, 6 Ch. D. 696 ; Wells v. 
Chelmsford Local Roard, 15 Ch. D. 108. 

LXXVn. Upon any sucli deposit of money as last aforesaid being 
made, the casHer of the Bank shall give to the promoters of the 
undertaking, or to the party paying in such money by their direction, 
a receipt for such money, specifying therein for what and for whose 
use (described as aforesaid) the same shall have been received, and in 
respect of what purchase the same shall have been paid in; and it 
shall be lawful for the promoters of the undertaking, if they think fit, 
to execute a deed poU, under their common seal, if they be a corpora- 
tion, or if they be not a corporation under the hands and seals of the said 
promoters or any two of them, containing a description of the lands in 
respect whereof such deposit shall have been made, and declaring the 
circumstances under which and the names of the parties to whose 
credit such deposit shall have been made, and such deed poll shall be 
stamped with the stamp duty which would have been payable upon a 
conveyance to the promoters of the undertaking of the lands described 
therein ; and thereupon all the estate and interest in such lands of the 
parties for whose use and in respect whereof such purchase-money or 
compensation shall have been deposited shall vest absolutely in the 
promoters of the undertaking, and as against such parties they shall 
be entitled to immediate possession of such lands. 

LXXVIII. Upon the application by petition (y) of any party making 
claim to the money so deposited as last aforesaid, or any part thereof, or 
to the lands in respect whereof the same shall have been so deposited, 
or any part of such lands, or any interest in the same, the said Court 
of Chancery in England or the Court of Exchequer in Ireland may, in 
a summary way, as to such Court shall seem fit, order such money to 
be laid out or invested in the public funds, or may order distribution 
thereof, or payment of the dividends thereof according to the respective 
estates, titles, or interests of the parties making claim to such money 
or lands, or any part thereof (z), and may make such other order in 
the premises as to such Court shall seem fit (a). 

{y) The application for investment is now by summons, see S. S. C. 1883, 
Ord. LV. r. 2 (7), infra. 

Where the company alleged that the owners failed to make a title, and paid the 
purchase-money into Court under sect. 76, and the owners obtained a decree for 
completion of the purchase in a suit, the order for payment out under this section 
was made on a petition entitled in the suit and in the matter of the Act {Galliers v. 
Metropolitan Railway, H Eq. 410). 

(«) Under this section incumbrancers may petition for the money to be paid to 
them out of court (Re Marriage, 9 W. E. 84 Sf; but they cannot recover more than 
six years' arrears of interest {Re Stead, 2 Ch. D. 713). 

(a) Purchase-money in Court, under this section, is converted into personalty, 
the vendors from whom the land is taken being competent to convey (Ex parte 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 37 

2%rm«»i, 1 Sim. N. S. 260 ; ^Ex parte Han-op, 3 Drew. 726, 733 ; Ex parte SawUm, 7 & 8 Vict. 
■Pii'nni' S^°i^^^ °o*e to sect. 69, ante, p. 28). See, however, lie Wallcer'a c. 18, ». 69-87. 

J!,state, II U. i. Ch. 888 ; and if the company have taken the land from a person 

moompeteut to deal with them the money in Court helongs to the heir (iJe Tugwell, 

A '' '^"^'■s Pearson, J. declined to follow Ex parte Flamank. 

A person claiming in respect of an interest created after the notice to treat 
cannot apply for compensation {Ex parte Edwards, 12 Eq. 389). 

LXXIX. If any question arise respecting the title to the lands in Party in ' 
respect whereof such monies shaU have been so paid or deposited as Kemedthe 
aforesaid, the parties respectively in possession of such lands, as being owner, 
the owners thereof, or in receipt of the rents of such lands, as being 
entitled thereto at the time of such lands being purchased or taken, 
BhaJl be deemed to have been lawfully entitled to such lands until the 
contrary be shown to the satisfaction of the Court (4), and unless the 
contrary be shown as aforesaid, the parties so in possession, and aU 
parties claiming under them, or consistently with their possession, shall 
be deemed entitled to the money so deposited, and to the dividends or 
interest of the annuities or securities purchased therewith, and the 
same shall be paid and applied accordingly (e). 

(a) See Ex parte Webster, "W. N. (1866), 246. Party in 

(c) " The legislature has anxiously provided that the Court shaE not upon the possession. 
occasion of applications for payment of purchase-money, deal with the property in wi,g„ j.},- 
any way which can aflfect the title, unless it can be shown so clearly as to be beyond rjoQ^j. .,yjii 
all question, that there must be litigation upon the question of title," per V.-C. -.fuse to in 
Wood in He St. I'ancras Eurial Ground, 3 Eq. 173, 183; and see Ex parte Chamberlain, JIm^JZ, +;Ii- 
14 Ch. D. 323 ; Ee Winder, 6 Ch. D. 696 ; Re Evans, W. N. (1873), 46 ; Ee Ferry, I| "?f!. : ™ 
1 Jur. N. S. 917 ; Se Sterry, 3 W. R. 561 ; Re Alston, 5 W. R. 189. Bos^esaoi 

But where the title is proved to be doubtful, the Judge is bound to try the ^ 
question, as formerly the Court would have directed an issue at law {Ex parte What rights 
Issauehaud, 3 T. & Coll. Exch. 721 ; Ex parte The Freemen, ^e. of Sunderland, 1 wiU be deter- 
Drew. 184). "Where successive interests were claimed, and there was a dispute mined, 
whether one of the claimants was really entitled, the Court would apply its ordinary Where title 
machinery to ascertain the respective values of the particular interests, and after to part is 
paying the amount of the value of the interests as to which there was no doubt to disputed, 
the parties entitled, would return the remainder of the money to the company 
{Brandon v. Brandon, 2 Dr. & Sm. 305; 34 L. J. Ch. 333; 13 W. E. 251 ; Re N. 
London Railway Co., 2 Dr. & S. 312 ; 34 L. J. Ch. 373 ;' 13 "W. E. 364) ; and 
see Ite Ferhs, 1 Sm. & GiS. 545; Ffi Hayne, 13 W. E. 492; Bog§ v. Midland 
Railway, i Eq. 810. 

LXXX. In all cases of monies deposited in the Bank under the pro- Costs in cases 
visions of this or the special Act or an Act incorporated therewith (d), ^gMstted. 
except where such monies shaU have been so deposited by reason of 
the wilful refusal (e) of any party entitled thereto to receive the same, 
or to convey or release the lands in respect whereof the same shall be 
payable, or by reason of the wilful neglect of any party to make out a 
good title to the land required, it shall be lawful for the Court of 
Chancery in England or the Court of Exchequer in Ireland to order 
the costs of the following matters, including therein aU reasonable 
charges and expenses incident 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 (g) 
other than such costs as are herein otherwise provided for, and the 
costs of the investment of such monies in government or real sec^ri- 



88 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 



7&8Vict. ties (A), and of the reinvestment («) thereof in the purchase of other 
"■ ^^' °- ^^"^'^- lands, and also the costs of obtaining the proper orders (A) for any of 
the purposes aforesaid, and of the orders for the payment of the divi- 
dends and interest of the securities upon which such monies shall he 
invested, and for the payment out {I) of Court of the principal of such 
monies or of the securities whereon the same shall be invested, and of 
all proceedings relating thereto, except such as are occasioned by liti- 
gation between adverse claimants {m) : Provided always, that the costs 
of one application only for reinvestment in land shall be allowed, 
unless it shall appear to the Court of Chancery in England or the 
Court of Exchequer in Ireland, that it is for the benefit of the parties 
interested in the said monies that the same should be invested in the 
purchase of lands in different sums and at different times, in which 
case it shall be lawful for the Court, if it think fit, to order the costs of 
any such investments to be paid by the promoters of the under- 
taking (n). 



Costs payabl( 
by company. 



No vendor's 
lien for costs. 
Discretion 
of Court. 

Arranged 
costs. 



Where no 
jurisdiction. 



"Special 
Act." 

" Incorpo- 
rated there- 
with." 



I As the section applies to cases where the company uses its compulsory powers 
cither under the preceding sections, or under sect. 85 (see ^x parte Flower, 1 Ch. 
599), the Court inclines in doubtful cases to make the company pay the costs {Ex 
parte Marshall, 1 Phill. 660 ; Se long, 10 Jur. N. S. 417 ; Re Jones, 4 Jur. N. S. 
581, 887 ; 6 "W. R. 614, 762). 

The costs payable by the company (or companies, see note (/) ) may be divided 
into — 

(1) Costs of the purchase and consequential thereon, see note_(j). 

(2) Costs of interim investment in government or real securities, see note (A). 

(3) Costs of reinvestment and payment out, including successive partial invest- 
ments or abortive attempts to invest, see note (i). 

(4) Costs of orders, see note (/c). 

(5) Costs of " proceedings relating thereto," including costs arising from the land 
taken being subject to suits, or to incumbrances, or belonging to persons under 
disability, see notes (A) and (m). 

The section does not authorise the Court to order the company to pay the costs 
out of any particular fund (-B« Neath % Brecon Railway, 9 Ch. 263). 

The costs of all proceedings in Court are now in the discretion of the Court or 
Judge (Garnett v. Bradley, 3 App. Cas. 944 ; Ex parte Mercer^ Co., 10 Ch. D. 
481 ; E. S. C. (1883), Ord. LXV. r. 1, and notes to that rule, infra) ; but in pro- 
ceedings under the Lands Clauses Act the Court follows the rules as to costs laid 
down by that Act as explained and illustrated by the decided cases. 

As to the costs under special Acts, see note [d), infra. 

The Court refused to declare that the landowner had a vendor's Hen in respect of 
the costs (Earl Ferrers v. Stafford and TTttoxeter Railway, 20 W. E,. 478). 

If the landowner has put the company to unreasonable expense the Court may 
disallow him his costs, even of an application for payment out {Re Marylebone Im- 
provement Act, 19 W. E. 1068). 

Where, hy arrangement, a landowner was to be paid principal, interest, and costs, 
the taxing master was directed to allow all reasonable costs incurred by the vendor 
before the Parliamentary Committee {Cooper v. L. C. ^ D. Railway Co., 17 L. T. 283). 

When a company was insolvent, and the vendor was entitled for life only as 
rector, his costs were ordered to be paid out of the purchase-money {Re Glebe Zands 
of Great Teldham, 9 Eq. 68). 

When purchase-money paid into Court has been carried to the credit of a cause, 
but the account is not entitled in the ' matter of the Act, the company cannot be 
made to pay costs {Brown v. Fenwici, 14 W. E. 257 ; W. N. (1866), 6 ; Frescott v. 
Wood, 37 L. J. Ch. 691 ; W. N. (1868), 123 ; Fisher v. Fisher, 17 Eq. 340 ; Nock v. 
Noclc, W. N. (1879), 125). On an appUoation for payment out they ought not to 
be served, and if the applicant has served them he may be ordered to pay their 
costs, see Frescott v. Wood, and the other cases cited. 

{d) Por the meaning of "the special Act," see sect. 2, supra. The Lands Clauses 
Act is held to be " incorcorated " with all subsequent Acts, authorising the taking 
of lands {Ex parte Vicar of St. Sepulchre's, 4 De Gt. J. & S. 232 ; 12 W. R. 499), 
unless such subsequent Act contains provisions inconsistent with such Incorporation 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 39 

{Se Cherry's Estates, i De G. F. & J. 332 ; 10 "W. E. 305 ; He St. Katharine's Dock 7 & 8 Vict. 
Co., 14 W. R. 978). Wliere a speoial Act -was repealed and re-enaoted by a o. 18, s. 69-87. 

new Act, -with. wUoh was incorporated, the Lands Clauses Act, the special Act was 

held to be incorporated with the Lands Clauses Act (Ee Ellison, 8 De G. M. & G. 
62), see Se Solden, 1 Jur. N. S. 995 ; Re Shuttleworth, 4 GifC. 87 ; He Derriman, 
W. N. (1866), 269. 

In oases -where a special Act was dated before, and had not been incorporated Practice 
with the Lands Clauses Act, it was the practice of the Court of Exchequer to make under speoial 
the company pay costs, whether they were given by the special Act or not ; but the Acts. 
Court of Chancery was more strict, and held that the company need only pay such 
costs as were provided for by their special Act. (See the cases collected in Morgan 
and ■Wurtzhurg on Costs, p. 303.) The matter is of no great importance now as 
the costs are in the discretion of the Court in all cases, and the Court generally 
adopts the rules laid down by the L. C. C. Act (Ex parte Mercer^ Co., 10 Ch. D. 
481 ; JJe Sanbury, W. N. (1883), 116 ; Ex parte Sospital of St. Katharine, 17 Ch. D. 
378 ; Re Lee and Hemingway, 24 Ch. D. 669). 

(e) For cases of doubt, whether the refusal is wUful, see Re Jones, 4 Jur. N. S. What is not 
581 ; Ex parte Marshall, 1 PhU. 560. A wilful refltsal means a capricious refusal ; a wilful 
and a reasonable objection, though ultimately overruled, is not a wilful refusal refusal, 
within the section; Bee Ex parte Sradshaw, 16 Sun. 174; Re Windsor Railway, 12 
Beav. 522 ; Ex parte Railston, 15 Jur. 1028 ; and Ex parte Dashwood, 3 Jur. N. S. 
103; and see also .Ec parte Lawson, 17 W. E. 186; audife Divers, 1 Jui. N. S. 
995. 

But where a vendor insisted upon payment, not only of the purchase-money, but What is a 
of his costs also, before he gave up possession, and the company consequently paid wilful refusal, 
the purchase-money into the bank under the 76th section of the Act, V.-C. Wood, 
on a petition to obtain payment out of the money, held that the vendor had been 
guilty of " wilful refusal," and had thus disentitled himself to receive costs [Re 
Turner's Estate, 10 W. E. 128; and see also Ex parte Syde, cited in Seton, p. 1443). 
As to wilful neglect, see Re Woodbum, 13 L. T. 237 ; Re Marylebone Improvement Wilful 
Act, 19 W. E. 1058. neglect. 

(/) Where lands are taken by several companies, the costs of an application for Where several 
payment out of the purchase-monies must be borne by the companies, or, if any of companies 
them have been amalgamated, by such of them as are subsisting at the time of the paid in pur- 
application, in equal shares (Ex parte Gashell, 2 Ch. D. 360 ; 45 L. J. Ch. 368 ; 24 chase-money. 
W.'E. 752; Ex 'parte Ecclesiastical Commissioners, W. N. (1873), 173). And the 
same rule applies in general to the costs of an application for re-investment in land, 
except that llie costs of the ad valorem stamp on the conveyance must be borne by 
the companies rateably, according to the amount contributed by each to the pur- 
chase-monies (Ex parte Bishop of London, 2 De G. E. & J. 14 ; Ex parte Corporation 
of London, 5 Eq. 418 ; Re Maryport and Carlisle Ry. Co., 1 N. E. 506; 11 W. E. 
410 (S. G. 32 Beav. 397 ; 1 N. E. 645 ; 11 W. E. 507, contra, is overruled) ; Ex 
parte fiorpus Christi College, Oxford, 13 Eq. 334 ; Re Leigh, 6 Ch. 887 ; Ex parte 
Governors of Christ's Sospital, 27 W. E. 458 ; Re Byron, 1 De G. J. & S. 358 ; 2 
N. E. 294 ; 8 L. T. 562 ; Re Merton College, 1 De G. J. & S. 361 ; 3 N. E. 598 ; 10 
Jur. N. S. 223 ; 12 W. E. 503 ; 10 L. T. 8 ; Ex parte Governors of Christ's Sospital, 
2H. &M. 166; London and Brighton Ry. Co. v. The Shropshire Ry. Co., 23 Beav. 
605) ; and a surveyor's fee will be apportioned in the same way as the costs of the 
ad valorem stamp [Ex parte Corporation of London, 5 Eq. 418 ; Re Power, W. N. 
(1876), 205). ^ ,, , 

Where, however, there is great inequality in the amounts, such as would produce 
extreme hardship and injustice, the costs maybe apportioned (Ex parte Governors of 
Bartholomew's Sospital, 20 Eq. 369 ; Ex parte Christ Church, 9 W. E. 474 ; Ex parte 
Governors of St. Thomas's Sospital, 7 W. E. 425 ; Re Byron's Settled Estates, \ Tie 
Or. J. & S. 358 ; 2 N. E. 294 ; Ex parte Dean of Christ Church, W. N. (1872), 201) ; 
but see Ex parte Governors of Christ's Sospital, 2 H. & M. 166). _ 

The landowner ougit to make one apphcation only for payment out, or reinve^- 
ment of the money paid in by the several companies (Ex parte Lord Broke, 11 W. E. 

^^ Where two funds paid into Court had been dealt with by different branches of When funds 
the Court, and it was desired to deal with both funds at the same time, leave was are m ddEer- 
given to present one petition in both matters in one branch of the Court without ^nt branches 
toansferrhig either of the matters {Re Lord Arden, 10 Ch. 445). See, too. Re of the Court. 
ButterJUld, 9 W. E. 805 ; Re Gore Langton, 10 Ch. 328. ,.,-,„, ,„„„ r„of. -f 

(g) The costs of the purchase or taking of the lands, or which shall have been Costs of 
rn^ei in consequent thereof, include the costs of ascertaimng the value of the purc^e 
land conveyed, e.g.,-bj apportionment of ground-rents (Ex parte Flowc-l Ch. or takmg. 
599); »««<* in cases where the purchase is not compulsory, see note (p), p. 45 . (, , ■ 

They also include costs of a power of attorney from parties abroad (& Godley 10 Costs ot con- 
Ir Eq Eep 222 ; Ex parte Incumbent ofGuilden Sutton, 8 De G. M. & G. 380 ; 2 veyance. 



40 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 



7&8Viot. 
u. 18, H. 69-87. 

Costs of 
interim in- 
vestment. 



Costs of and ' 
incident to 
paymeiit of 
dividends. 



Costs of rein- 
vestment in 
land; 



in redeeming 
incumbrances 
or land tax. 



What are 
costs of rein- 
vesting in 
laud. 



Petitions 
under Trustee 
Act, &c. 



Costs where . 
reinvestment 
in land is 
asked for by 
person abso- 
lutely 
entitled. 

Special costs 
of purchase. 



Jur. N. S. 793), and costs of conveyance generally. As to costs of taking lands 
which are the subject of a suit, see note (4), infra. 

(A) The costs of interim investment include the broker's commission (Ea; parte 
Corporation of Trinity Souse, 3 Hare, 95 ; iJe Sraithwaite, 1 Sm. & Giff. App. xv. ; 
Hx parte Sari of Sarhorough, 22 L. T. (0. S.) 115). 

The company must pay the costs of an interim investment either in stock (JJe 
Liverpool Railway Co., 17 Beav. 392), or on real security {Re Flemon, 10 Eq. 612; 
Be Sewart, 18 Eq. 278 ; Re Smith, 9 Eq. 178 ; Re Blyth (Lord Chancellor Selbome), 
16 Eq. 468 ; 21 W. E,. 819 ; Reading v. Samilton, 5 L. T. 628) ; and without any 
condition as to the costs of any future permanent investment {Re Blyth; Re Sewart; 
the oases of Re Lomax, 34 Beav. 294 ; Re Wilkinson, 16 W. R. 537 ; and Re Flemon (on 
this point) must be considered overruled). See also Ex parte Eton College, 15 Jur. 
45 ; 3 Ely. Ca. 271. 

On an application for interim investment partly in securities authorised by the 
special Act, .and partly in debenture stock under the provisions of the Settled Land 
Act, 1882, the public body must pay the costs of investment [Re Hanbury, W. N. 
(1883), 116; 31 W. R. 784). 

The costs of, and incident to, the payment of the dividends must be paid by the 
company {Ex parte Ineumbent of Guilden Sutton, 8 De Gr. M. & Gr. 380 ; 2 Jur. N. S. 
793; Ex parte Eccles. Commissioners, 39 L. J. Ch. 623). 

So where the purchase-money of leaseholds was invested in consols, and the 
dividends thereon did not amount to the rents previously payable, so that yearly 
sales were necessary in order to satisfy the tenant for life, the costs of such sales 
were held to be payable by the company {Re" Zong, ' 1 W. E. 226 ; and see Re 
Edmunds, 35 L. J. Ch. 538 ; "W. N. (1866), 111 ; 14 W. R. 507). 

As to the costs of an application for payment of dividends to persons successively 
entitled, see Re Jolliffe, 9 Eq. 668, and other cases in note {k), infra. 

(i) The section provides that the company shall pay the costs of the reinvestment, 
in oases where the reinvestment is in lands or hereditaments {Re Lathropp's Charity, 

I Eq. 467) ; for if a company, acting under its compulsory powers, deprives a man 
of his land, it is bound, at its own cost, to place him in possession of land of equal 
ysihxB {Ex parte Rector of Solywell, 2 Dr. & Sm. 465). But the section does not 
provide that when the purchase-money is applied in any of the other modes autho- 
rised by the 69th section, the company shall pay any costs other than those of the 
application, and, accordingly, the costs of applying the purchase-money in dis- 
charge of incumbrances have been held not to be payable by the company {Ex parte 
Corporation of Sheffield, 21 Beav. 162 ; Ex parte Town Trustees of Sheffield, 8 W. R. 
602 ; Ex parte Earl of Sardwicke, 1 De G. M. & a. 297 ; 17 L. J. Ch. 422 ; Re 
Teates, 12 Jur. 279 ; Re Mark's Trust, W. N. (1877), 63) ; but the contrary was held 
in Ex parte Trafford, 2 T. & C. Ex. 522 ; Ex parte Bishop of London, 2 De G. E. & 
J. 14 ; and see Re London ^ South Western Railway Act, 2 J. & H. 390 ; and the 
costs of proceedings to redeem the land tax can certainly be ordered to be paid 
by the company {Re London ^ Brighton Railway Co., 18 Beav. 608 ; Ex parte 
Beddoes, 2 Sm. & Giff. 466 ; Re Bethlom Hospital, 19 Eq. 457 ; 44 L. J. Ch. 4(J6 ; 23 
W. R. 644, where the cases are discussed by Jessel, M. E. ; Re Vicar of Queen Camel, 

II W. E. 503 ; Ex parte Eospital of St. Katharine, 17 Ch. D. 378). 

The company have had to pay the following costs under the head of costs of rein- 
vesting the purchase-money in other lands : 

Costs of enrolling a purchase deed {Re Governors of Christ's Hospital, 12 W. R. 
669). 

Of referring the title to the conveyancing counsel of the Court {Re Morgan Jones, 
6 W. R. 762). 

Of a second petition rendered necessary by the lands selected for reinvestment 
being the subject of a chancery suit {Carpmael v. Froffit, 17 Jur. 875 ; 23 L. J. Ch. 
165) ; and see infra, note (A). 

Of a petition under the Trustee Act rendered necessary by the death of the vendor 
leaving an infant heir {Re Lowry, 15 Eq. 78). See cases cited, p. 45, post. 

But not the costs of the vendor's appearance on the petition {Re Dylar, 1 Jur. 
N. S. 975) ; nor the fine payable on a reinvestment in purchase of copyholds, the 
fine being part of the purchase-money {Ex parte Vicar of Sawston, 6 W. E. 492 ; 4 
Jur. N. S. 473). _ 

The company is liable to pay the costs of reinvestment in land, even where a 
person who has become absolutely entitled to the money asks for such reinvestment 
{Re Jones, 39 L. J. Ch. 190 ; 18 W. R. 312 ; Re Eodd, W. N. (1871), 83 ; and see 
Re Barker, 13 Eq. 495 ; 26 L. T. 12 ; 20 W. R. 289 ; Re Bagot, 14 W. R. 471 ; Re 
Fick, 10 W. R. 365 ; Re Lye, W. N. (1866), 20) ; and where a person absolutely en- 
titled to the money died, having resettled it, the company had to pay the costs of 
reinvestment in land, to be settled to the uses of the will {Re De Beauvoir, 2 De G. 
E. & J. 5 ; 8 "W. R. 425 ; and see Re Lye, W. N. (1866), 20). 

When the money is sought to be reinvested in land upon a contract which throws 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 41 

upon the purchaser costs of the purchase, which in an open contract would be home 7 & 8 Vict, 
by the vendor, the costs directed to be paid by the company will be Umited to those c. 18, s. 69-87. 

which in an open contract would be purchaser's costs {JSx parte Governors of Christ's ^^ '• 

Sospital, 20 Eq. 605 ; Se Temple Church Lands, Bristol, 26 W. R. 259 ; W. N. (1877), 
262 ; and see Re Mason, W. N. (1872), 77). 

The costs of reinvestment in the purchase of other lauds may include the costs of Costs of 
successive reinvestments, and of bond fide but abortive attemps to reinvest. successive 

The costs of three successive reinvestments in land were ordered to be paid by the reinvestments 
company in JJe St. Catharine's Bock Co., 3 Rly. Ca. 514; and see Jones v. Zewis, 
2 M. & Gr. 163 ; Re Merchant Tailors' Co., 10 Beav. 485 ; Ex parte Trustees of St. 
Bartholomew's Hospital, 4 Drew. 425 ; Ex parte Eton College, 3 Rly. Oa. 271 ; Ex parte 
Bouverie, 4 Rly. Ca. 229; Re Hereford, ^e. Ry. Co., 13 W. R. 134; Ex parte 
Rector of Loughton, 6 Rly. Ca. 591 (where the company had to pay the costs, though 
61. only was invested in the second purchase) ; Re Brandon, 2 Dr. & Sm. 162 ; Ex 
parte Fishmongers' Co., U "W. R. 81; Re Paddon, W. N. (1878), 65. Where the 
purchase-money amounted to 125,000^. the Court did not consider six applications tor' 
reinvestment leaving 38,440/. still uninvested to be unreasonable (Ex parte Hospital 
of St. Katharine, 17 Ch. D. 378). In Re Kinsey, 1 N. R. 303, the balance remaining 
uninvested was paid out to trustees under the 71st section. 

Land having been purchased out of money in Court, an application was made for In redemption 
reinvestment of a further sum in redemption of the laud-tax, and the company paid of land tax. 
the costs [Re London and Brighton Ry., 18 Beav. 608). 

Where attempts not authorised by the Court to reinvest in land fail by reason of Of attempts 
the Court's disapproval or otherwise, the company does if&t pay the costs, but where to reinvest, 
the Court has approved, and the purchase goes off for other reasons, the company 
pays the costs of the bond fide attempt [Ex parte Rector of Holyioell, 2 Dr. & Sm. 463; 
13 W. R. 960 ; Re Carney, 20 W. R. 407 ; W. N. (1872), 53 ; 26 L. T. 308 ; Ex parte 
Copley, 4 Jur. N. S. 297 ; Ex parte Eton College, 7 W. R. 710 ; Re Macdonald, 6 Jur. 
N. S. 865 ; 2 L. T. 168 ; Ex parte Stevens, 15 Jur. 243 ; Re Hardy, 18 Jur. 370 ; Re 
WoUey, 1 W. R. 407, 465 ; Re Vaiodrey, 3 Giff. 224 ; Ex pUrte Pumfrey, 4 Rly. Oa. 
490 ; Ex parte The Manchester Burial Board, W. N. (1866), 117). 

(Jc) The costs of the application maybe directed to be paid by the company in the Costs of ob- 
f olio wing cases : — taining the 

If the application is for reinvestment, and that not merely strict reinvestment in orders. 
land, but also in any of the modes allowed by the Court under section 69 ; see Re -^ov reinvest - 
Lathropp's Charity, 35 Beav. 297 ; 1 Eq. 467, where Re Bucks Railway, 14 Jur. 1065, ment. 
and Re Oxford, ^c. Railway, 27 Beav. 571, were reviewed. 

If the application is for payment of the dividends of an interim investment, it is Ij'or payment 
decided that though there has been an application for interim investment and pay- of dividends 
ment of dividends to one tenant for life, the company must bear the costs of a to persons 
further application on the death of such tenant for life for payment of future entitled. 
dividends to the person subsequently entitled [Re Jolliffe, 9 Eq. 668, where Ex parte 
Incumbent ofGuilden Sutton, 8 De G. M. & G. 380, was referred to) ; and see JJe Lye, 
W. N. (1866), 20 ; Re Byrom, 5 Jur. N. S. 261 ; but the company had not to pay the 
costs of a petition for payment of dividends to new trustees of a settlement, where 
the origfaial petition was defective [Re Pryor, W. N. (1876), 141 ; 35 L. T. 202 ; see, 
however, as to the costs of defective and unnecessary petitions, infra, p. 45. 

If the application is for payment out to the person absolutely entitled, then it the For payment 
land belongs to several persons, though their interest is derived under the same out. 
will, they may each apply ; but if two or more appear by one solicitor, they wiU 
only have one set of costs [Re Nicholl, W. N. (1866), 93). 

The- company must pay the costs not only of obtaining the orders, but of pro- Costs of 
ceedings relating thereto except those caused by litigation between adverse orders a,nd 
claimants (as to which see note (m) ). proceedings 

Thus where the lands taken are the subject of an administration suit pending in relating 
the Chancery Division, the company wiU have to pay the costs of proceedings therein thereto, 
necessitated by the purchase ; seeiinningv. Henderson, 2 De G. & Sm. 485 ; Paterson 
V. Paterson, 10 L. T. 183 ; Bradshaw v. Fane, I N. R. 159 ; 9 Jur. N. S. 166 ; Re 
Brandon, 2 Dr. & Sm. 162 ; S. C. mm. Brandon v. Brandon, 9 Jur. N. S. 11 ; Eden v. 
Thompson, 2 H. & M. 6 ; Brandon v. Brandon, 11 Jur. N. S. 30 ; Henniker v. Chafy, 
35 Beav. 124 ; Picardv. Mitchell, 12 Beav. 486 ; Haynes v. Barton, 1 Dr. & Sm. 483 ; 
and see S. G. 1 Eq. 422 ; Henniker v. Chafy, 28 Beav. 621, 625 ; Re Walker, 7 Rly. 
Cases, 129 ; Re Taylor, 1 Mao. & G. 210 ; Re Here's Estate, 5 Rly. Cases, 592 ; Re 
Merchant Tailors' Co., 10 Beav. 485 ; but see Here v. Smith, 14 Jur. 55 ; Re Pieton, 
3 W. R. 327 ; Wilson v. Foster, 26 Beav. 398 ; 6 Jur. N. S. 113 ; Sidney v. Wilmer, 
31 Beav. 338. 

Where lands belonging to a lunatic were taken, and the next of kin attended References in 
inquiries into the propriety of investment, &o., their costs were held payable by the lunacy, 
company (iJe Briscoe, 2 De G. J. & S. 249 ; and see Re Taylor ; Re Walker ; Re Milrns, 
1 Ch. D. 28). 



42 



LAOT)S CLAUSES CONSOLIDATION ACT, 1845. 



7&8Viot. 
u. 18, s. 69-87. 

Costs of 
parties im- 
properly 
served. 
Vexatious 
appearances. 
Costs of ser- 
vice upon and 
appearance 
of incuia- 
branoers. 



Mortgage 
created since 
payment in. 



Costs of ser- 
vice upon and 
appearance 
of trustees. 



Costs of 
appearance 
of remainder- 
men. 

Service on 
persons 
entitled to 
other shares. 

When re- 
maindermen, 
should be 
served. 



Ordinary. 

Ecclesiastical 
Commis- 
sioners. 



But the company is not liable to pay costs of the appearance of parties to the 
suit who have been improperly served {Sden v. TAompion, 2 H. & M. 6 ; and see 
Melling v. Mrd, 22 L. J. Ch. S99; Sairey. Zovitt, 12 L. T. (O. S.) 306);. and if 
parties who might and ought to appear together, vexatiously appear separately, 
and thereby increase the costs, the company will not have to pay these increased 
costs {:Ex parte Baroness Braye, 11 W. E. 333 ; and see Ee Nichott, 14 W. E. 475 ; 
Me Prebend of St. Margaret, 10 L. T. 221). 

The following rule seems to be now established as to service upon mortgagees 
and incumbrancers, and the costs consequent thereon : Where there are incum- 
brancers who, as a matter of form, are necessary parties, but who have no interest 
in opposing the petition, the proper course is to serve them with a copy of the 
petition, and tender them thirty shillings for costs, with an intimation that if they 
appear they will be liable to pay their own costs ; the rule applies equally to peti- 
tions for reinvestment in land and to petitions for payment out, either to or with 
the consent of incumbrancers ; but the petitioners will be entitled to add to their 
costs of the petition (in addition to the thirty shillings), a sum sufficient to cover 
the costs of an affidavit of service ; see Re Gore Langton's Estates, 10 Ch. 328 ; 44 
L. J. Ch. 405 ; 23 W. K. 842 ; 32 L. T. 785 ; Be HaUtead United Charities, 20 Eq. 
48 ; Ex parte Jones, 14 Ch. D. 624 ; Be Battison, 4 Ch. D. 207 ; E. S. C. (1883), 
Ord. LXV. r. 27 (19). The earlier cases were conflicting. 

The company are not bound to pay the costs of incumbrancers on the interest of 
a tenant for Ufe {Bx parte Smith, 6 Ely. Ca. 160), unless they are served at the 
instance of the company {Be Bhmgerford, 1 K. & J. 413), or their interests are 
affected (Be Nash, 1 Jnr. N. S. 1082 ; and see Be Thomas, 12 W. E._646). Nor is 
it necessary on a petition for interim investment and payment of dividends to Serve 
persons having charges on the inheritance prior to the fife estate, and the costs of 
such parties, 3 served, will not be allowed against the company (Be Morris, 20 Eq. 
470 ; 23 W. E. 851 ; and see Be Bowling, 46 L. J. Ch. 668 ; 24 W. E. 729). So, 
when a mortgage affects part only of the land, but hot the part taken by the com- 
pany, the company will not be ordered to pay the costs of the mortgagee if served 
(Be Teates, 12 Jur. 279) ; and where a small portion of the estate only was in mort- 
gage, and it became necessary to apply to the Court in a pending suit to obtain 
a release from the mortgagee, it was held that the company were not liable to pay 
the costs of the application (Bx parte PhiUips, 11 W. E. 54, reversing 8. <7. 2 J. & H. 
390). 

The costs of a mortgagee, whose incumbrance has been created after the lands 
were taken and the money paid into Court are not payable by the company (Be 
Middle Level Drainage and Navigation Commissioners, June 23, 1864, V.-C. K. ; Be 
Jones, 39 L. J. Ch. 190 ; 18 W. E. 312). 

Where the mortgagee of a tenant for life of lands taken by a railway company 
die^, and the mortgagor and the executors of the mortgagee petition for payment 
of the dividends to a transferee of the mortgage, the company are not liable to pay 
the costs of the petition (Be Syrom, 5 Jur. N. S. 261 ; 7 W. E. 367). 

The general rule above laid down as to mortgagees applies aJso in the case of 
trustees, but of course the company must pay the costs of trustees who have been 
properly served and appear (Be Finoh, 14 W. E. 472 ; Be Diike of Cleveland's Barte 
Estates, 1 Dr. & Sm. 46 ; Hennilcer v. Chafy, 35 Beav. 124 ; overruling on this point 
Wilson V. Foster, 26 Beav. 398) ; and see Be Bwmell, 12 W. E. 568 ; Be Bowes, 12 
W. E. 929 ; Be East, 2 W. E. Ill ; Ex parte Metropolitan By., W. N. (1868), 204 ; 
16 W. E. 997 ; Ex parte Z. ^ S. W. By. Co., 38 L. J. Ch. 527 ; Be Pattison, 4 Ch. 
D. 207. 

Generally speaking, if a tenant for life petitions for interim investment or for 
payment out, or for reinvestment in land, and there is no suit pending or other 
special circumstances, the petition should not be served on remaindermen or 
trustees (Ex parte Staples, 1 De G. M. & Gr. 294; Be Whitling, 9 W. E. 830; Be 
Marner, 3 Eq. 432 ; Be Pawling, 45 L. J. Ch. 568 ; 24 W. E. 729). 

And where a petitioner is only entitled as one of a class to an aliquot part of 
the fund service on the other parties interested may be dispensed with (Be Midland 
By., 11 Jur. 1095). 

But where the petition is under section 74 for the application of purchase- money 
paid in respect of leases or reversions which are in settl^nent, and the apportion- 
ment thereof between tenant for life and remaindermen, the remaindermen are 
"parties interested" within the section, and are entitled to appear (Be Brailey, 
W. N. (1866), 109 ; Be Crane, 7 Eq. 322 ; and see Be Bomney, 3 N. E. 287). 

And when the petition is for reinvestment not in land or hereditaments but in 
improvements, the remaindermen should be served (Be Leigh, 9 Ch. 684). 

As to the costs of serving the ordinary, and of his appearance on the petition 
where his consent is required, see Ex parte Vicar of Creech St. Michael, 21 L. J. 
Ch. 677, where such costs were allowed ;'bnt compare Ex parte Bishop of London, 
2 De G. F. & J. 14, where the costs of the Ecclesiastical CommisBioners, whose 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 43 

consent was necessary to the inyeBtment, and JB« Incumbent of U^hitfield, 1 J. & H. 7 & 8 Vict. 
610 ; 9 W. B. 764, where the costs of the governors of Queen Amie's Bounty, 0. 18, b. 69-87. 

were disallowed against the company. In Ex parte Dean and Canons of Manchester, 

28_L. T. 184, the costs of the Churdi Estates Commissioners were ordered to be Governors of 
paid out of the funds in Court. Queen Anne's 

Tenants in common interested in money paid into Court by a company are Bounty, 
entitled to their costs of appearance separately on an application by one of them Church 
for payment of the money to an incumbrancer of the whole {Jie Braye, 9 Jur. Estates' Com- 

Vm^" *^*)" missioners. 

The costs of the Attorney-General on a petition entitled under Sir S. Eomilly's Tenants in 
Act, 52 Geo. III. c. 101, are payable by the company iRe Zondon, Brighton and „„„_,„_ 
South Coast Bailway Co., 18 Beav. 608). common. 

The company are not liable to pay the costs of the official solicitor whom it has -Attorney- 
become necessary to serve through the fund not having been dealt with for gsiisi^s,!. 
upwards of fifteen years (iJ« Clarke, 21 Ch. D. 776). Official 

The company were held liable to pay the costs of freemen of a city where the solicitor, 
land belonged to a corporation [Ex parte Mayor of Lineoht, 6 Ely. Ca. 738). Ereemen. 

The Court will take care that the company are not put to unnecessary costs ; e.g., TTimeoeasarv 
of troneoessary matter in a petition {Ex parte Oshaldiston, 8 Hare, 31 ; Haire v. „„-+- ^^ 
Lovitt, 12 L. T. (O. S.) 306) ; but the introduction into the petition of clauses in 
special ^rt« is not necessarily impertinent (JSe Lilley, 17 Sim. 110) ; and see as to Lengthy 
costs of unnecessary matter generally, R. S. C. (1883), Ord. LXV. r. 27 (20), petitions. 
infra. Unnecessary 

So, if a second petition is necessary by reason of a defect in the first, the com- and defective 
pany will not have to pay the costs; see lie London and Brighton Bailway Co., 18 petitions. 
Beav. 608, 612; Ex parte JoUiffe, 3 Jur. N. S. 633 ; Be Byrom, 5 Jur. N. S. 261 ; 
Be Leigh, 6 Ch. 887 ; Ex parte JVinder, 6 Ch. D. 696 ; secus where the defect was 
in the order [Be Goe, 3 W. E. 119, where the costs of two necessary petitions were 
allowed against the company ; and see Be Metropolitan Bailuay Co. and Maire, 
W. N. (1876), 245) ; but see Be Oakham School, 23 L. T. (0. S.) 261 ; and Be Pryor, 
W. N. (1876), 141 ; 35 L. T. 202. See also JJe Pattison, 4 Ch. D. 207 ; Be Nicholls, 
W. N. (1866), 93. 

Where two portions of a settled estate had been taken by different corporations, 
and the purchase-money had been paid into two dififerent branches of the Court, 
and two petitions were presented for reinvestment of the two funds together in one 
purchase, the Court only allowed the costs of one as costs under the Act (Be Gore 
Langton's Estates, 10 Ch. 328); and see Be Butterjield, 9 W. E. 805; Be Lord 
Arden, 10 Ch. 445. 

When the purchase-money has been once paid out, or transferred to a new Subsequent 
account {Melting v. Bird, 22 L. J. Ch. 599 ; 17 Jur. 155), the company ought not dealings with 
to pay tile costs of any further applications rendered necessary by subsequent the money 
dealings with, or settlements of the property by, the landowner, or by the appoint- after transfer, 
meut of new trustees of the property {Be Andenshaw School, 1 N. E. 255) ; and see 
Ex parte Hordem, 2 De G. & Sm. 263 ; Be Byrom, 5 Jur. N. S. 261 ; 7 W. E. 367. 

Where an order directed payment of dividends to a tenant for hfe, the 
company were held not liable to pay the costs of a subsequent order for payment 
of them to an assignee of the tenant for life {Ex parte Vicar of Kidderminster, 7 
W. E. 482 ; Be Pick, 10 W. E. 365). As to the costs where the land belonged to a 
charity which it has subsequently become necessary to reconstitute, see Be Shake- 
speare Walk School, 12 Ch. D. 178 ; Be St. Paul's Schools, 52 L. J. Ch. 454 ; 31 
W. E. 424. 

Where other money is invested besides the sum paid in by the company, the Where other 
Court will take care that the costs are not thereby increased {Be Branmer, 14 Jur. money is in- 
236 ; Be Loveband, 9 W. E. 12 ; Ex parte Sodge, 16 Sim. 159 ; Ex parte Tetley, 4 vested besides 
Ely! Ca. 55 (but see Ex parte Lord Palmerston, ibid. 57) ; Ex parte King's College, that paid in. 
5 De G. & Sm. 621 ; Ex parte Newton, 4 Y. & CoU. 518 ; Attorney-Gen. v. Mayor of 
Bochester, 15 W. E. 765 ; W. N. (1867), 142 ; Ex parte Ecclesiastical Commissioners, 
13 W. e'. 575). 

(l) The costs of payment-out include those of a disentailing deed {Be Brooking, Costs of pay- 
2 Giff. 31 ; Ex party Vaudrey, 3 Gi£E. 224) ; and of haU-yearly sales where necessary ment out, 
for apportionment as between tenant for life and remaindermen of leaseholds ; see Be 
Long and Be Edmimds, cited note (A), ante. 

As to costs of reinvestment when asked for by a person absolutely entitled, see 
note at foot of p. 40, ante. _ . ^ ., ^ „ ■, ^ „ 

(m) The words "except such as are occasioned," &c., refer to "costs" and not Exception of 
to "proceedings " {Be Cant, 1 De G. E. & J. 153 ; Ex parte Beotor of St. James, costs of ad- 
9 Jur N S 1222). " Adverse litigation arises where different parties set up adverse verse litiga- 
titles'to the estate" {Askew v. Woodhead, 14 Ch. D. 27, per Jessel, M. E.). The tion. 
usual form of order (on which see Seton, p. 1441, and Ex parte Hooper, 1 Dr. 269), 
directs the company " to pay the coats of obtaining this order, &c., and of all the 



44 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 



7 & 8 Vict. 
c. 18, s. 69-87, 



Adverse 
claimants. 



Successive 
reinvest- 
ments. 



Form of con- 
veyances. 



proceedings relating thereto." ' ' Notwithstanding what is stated in Re Cant, 1 De Gr. 
F. & J. 159, andiJe Courts of Justice Commissioners, W. N. (1868)-, 124, it is not and has 
not been, the practice to insert the exception as to the costs of litigation between 
adverse claimantB, unless it appears or is suggested that some litigation has taken 
place " (Seton, p. 1441). In a simple case the order should specify what costs fall 
within the exception {Re Tookey, 16 Jur. 708 ; Re Longuorth, 1 K. & J. 1 ; Ex parte 
Collins, 15 L. T. (0. S ) 362 ; Ex parte Palmer, 13 Jur. 781). And see further as to 
the form of the order. Re Sayward, 9 L. T. 320 ; Ex parte Great Southern and Western 
%., Ir. E. llEq. 497. ■ 
This exception 'only applies where there is an actual litis contestatio [Re Longworth, 

I K. & J. 1 ; Re Spooner, ibid. 220 ; Re Hvngerford, ibid. 413 ; JSx parte Sooper, 1 
Drew. 264). Costs incident to the ordinary administration of a fund by the Court, 
e. g. the costs of an inquiry, how much of a fund belongs to a mortgagor and how 
much to a mortgagee must be borne by the Co. {Re Bareham, 17 Ch. D. 329 ; 
Eden v. Thompson, 2 H. & M. 6). Where the land belonged to a devisee for life 
with remainder to the testator's heirs, it was held that the company must pay the 
costs of two petitions by two co-heirs, and also the costs of investigating the title 
of other parties who claimed to be heirs, in answer to advertisements ordered to be 
issued by the Court, except such costs as were occasioned by affidavits of the 
petitioners in answer to such claims {Re Spoonei-, 1 K. & J. 220 ; and see Haire v. 
Lovitt, 12 L. T. (0. S.) 306). 

A contest between tenant for life and remainderman as to how much of a fund 
belonged to one of them, and how much to the other, was held by V.-C. Bacon to 
be within the exception ; but this decision was disapproved of by Jessel, M. E. 
{Askew V. Woodhead, 14 Ch. D. 27; 41 L. T. 670; 42 L. T. 567). 

It was said by V.-C. Kindersley, in Re Tookey, 16 Jur. 708, that the excep- 
tion was not intended to apply to a question of construction decided by the 
Court upon petition, but to a case where an action at law was necessary to decide 
the rights of the parties. See, too. Ex parte Palmer, 13 Jur. 781 ; Re Singleton, 

II "W. R. 871 ; Re Wilson, W. N. (1867), 110. But where the petitioner, although 
there was no actual hostile litigation, was obliged to bring parties before the Court 
to contest questions with him he paid their costs, though the general costs were 
borne by the company {Ex parte Cooper, 2 Dr. & Sm. 312 ; 34 L. J. Ch. 373 ; 11 Jur. 
N. S. 103 ; 13 "W. R. 364 ; 11 L. T. 661). 

Where a question arising on the construction of a wiU relating to the property 
taken was argued by the petitioner and the respondents, the company was only 
ordered to pay one set of costs {Ex parte Styan, Johns. 387 ; Ex parte Tales, 17 W. E. 
872 ; 20 L. T. 940 ; W. N. (1869), 150). In another case, an additional application 
having been rendered necessary by litigation, no order as to costs was made thereon, 
{Ex parte Joliffe, 3 Jur. N. S. 633). But in Carpmael v. Proffitt, 23 L. J. Ch. 165 ; 17 
Jur. 875, it was held that the fact of a second petition being rendered necessary by 
the investment of the purchase-monies in other lands sold in a pending suit did not 
bring the case within the exception in the Act. 

When a company has, by virtue of two different Acts, taken two pieces of land 
held under the same title, with knowledge that such title is disputed, and taken 
a conveyance from both claimants, it must pay the costs of two applications for 
investment, including the costs in each case of the appearance of the adverse 
respondents {Re Butterjield, 9 W. E. 805). But where two parties claimed the 
money and the company paid it into Court, and one of them abandoned his claim, 
the company were held not liable for the costs of payment in or of the petition by 
the other for payment out, the Court doubting indeed whether the company were 
not in strictness entitled to have their costs paid by the claimant {Re English, 13 
W. E. 932 ; 12 L. T. 561 ; see, however, Re Duke ofSorfoWs Estates, W. N. (1874) 
158 ; 22 W. E. 817). In Re Bagot, 10 W. E. 607, V.-C. Kindersley, upon a special 
Act containing clauses as to costs substantially the same as those in the Lands 
Clauses ConsoSdation Act, decided that the company must pay aU the costs of a 
petition to obtain payment of money out of Court, involving a question of disputed 
conversion, except the costs of the petitioner and of a respondent, both of whom 
had failed in their contentions. 

(«) See note (i), ante. 

And with respect to the conTeyances of lands, he it enacted as 
follows : 

LXXXI. Conveyances of lands to be purchased under the provisions 
of this or the special Act, or any Act incorporated therewith, may be 
according to the forms in the schedules (A) and (B) respectively to this 
Act annexed, or as near thereto as the circumstances of the case will 



LANDS CLAUSES CONSOLIDATION ACT, 1845. 45 

admit, or fey deed in any other form wMoli the promoters of the tinder- 7 & 8 Viet, 
taking may think fit ; and all conveyances made according to the forms "' '^' ~ " 
in the said schedules, or as near thereto as the circumstances of the 
case will admit, shall be effectual to vest the lands thereby conveyed 
in the promoters of the undertaking, and shall operate to merge all 
terms of years attendant by express declaration or by construction of 
law on the estate or interest so thereby conveyed, and to bar and 
to destroy all such estates tail, and all other estates, rights, titles, 
remainders, reversions, limitations, trusts, and interests whatsoever of 
and in the lands comprised in such conveyances which shall have been 
purchased or compensated for by the consideration therein mentioned ; 
but although terms of years be thereby merged they shall in equity 
afford the same protection as if they had been kept on foot and assigned 
to a trustee for the promoters of the undertaking, to attend the rever- 
sion and inheritance. 

LXXXn. The costs of all such conveyances (o) shall be borne by Costs of 
the promoters of the undertaking, and such costs shall include all conveyances, 
charges and expenses incurred {p) on the part as well of the seller as 
of the purchaser, of all conveyances and assurances of any such lands, 
and of any outstanding terms or interests therein, and of deducing, 
evidencing, and verifying the title to such lands, terms, or interests, 
and of making out and furnishing such abstracts and attested copies as 
the promoters of the undertaking may require, and all other reasonable 
expenses incident to the investigation, deduction, and verification of 
such title. 

(o) The costs of a conveyance prepared but not used by reason of inoumbranoers Costs of 
refusing to join, were held to be payable by the company in Be Divers, 1 Jur. N. S. couveyanoe. 
995. The costs of conveyance under this section do not include costs of a collateral 
agreement with the vendor, which, though part of the oonsiderationf or the purchase, 
forms no part of the conveyance [Se Zietch and Kewney, 15 W. E. 1055). 

{ji) There is a distinction between the costs payable by the company under this Costs undei* 
section and under section 80, mpra, the reason being that the former section refers this section 
to cases where the company uses its compulsory powers and therefore has to pay all different from 
the costs arising out of the transaction ; but this section relates to purchases by costs under 
agreement wheie the vendor can make his own terms, or, if he goes before a jury, can sect. 80. 
urge any incidental expenses before the jury as a ground for increase of compensa- 
tion ; therefore this section deals only with the legal expenses of making a title and 
conveying the property, taking those expenses in their largest sense {e. g., including 
the taking out administration for purposes of conveyance, Ee Liverpool Improvement 
Act, 5 Eq. 282 ; overruling JJe S. WalesMy., HBeav. 418), but not with any costs of 
ascertaining what that is which is to be put into the document {Bx parte Suck, 1 H. 
& M. 519 ; 33 L. J. Ch. 79, where the costs of apportioning ground-rents between Costs of 
houses taken and houses not taken were disallowed against the company on taxation) : apportion- 
and see JEr parte Incumbent of Alsager, 2 W. E. 324 ; £x parte Feoffees of Addies' ment ; 
Charity, 3 Hare, 22 ; Se Woodburn, 13 L. T. 237. 

As to the costs occasioned by a vendor dying and leaving an infant heir or devisee, of petition 
so that a suit or petition under the Trustee Act is necessary, see Lake v. Eastern under Trustee 
Counties Ry., 19 L. T. (O. S.) 323 ; Me Loviry, 15 Eq. 78 ; Me Manchester % Southport Act. 
My., 19 Beav. 365 ; Eastern Coimiies By. v. Tufnell, 3 Ely. Ca. 133 ; Midland Counties 
By V Wetteomb, 11 Sim. 57; Midland Cotmties My. v. Caldecott, 2 Ely. Ca. 394; 
Armitage v. Askham, 1 Jur. N. S. 227 ; Ex parte Cave, 26 L. T. (O. S.) 176. ' 

Where the agreement was to sell in fee simple, the company had not to bear the 
expense of discharging a mortgage (Ex parte Fhillips, 3 De G. J. & S. 341 ; 1 1 W. E. 
64 ; overruling S. C. 2 J. &H. 390). 

LXXXin. If the promoters of the undertaking and the party Taxation of 

entitled to any such costs shall not agree as to the amount thereof (q). costs of con- 
"' veyanoes. 



46 LAOTJS CLAUSES CONSOLIDATION ACT, 1845. 

7 & 8 Viet, such costs shall be taxed by one of the taxing-masters of the Court of 
c. 18, 8. 69-87. Qhancery, or by a Master in Chancery in Ireland, upon an order of 
the same Court, to be obtained upon petition in a summary -way by 
either of the parties ; and the promoters of the undertaking shall pay 
what the said master shall certify to be due in respect of such costs to 
the party entitled thereto, or, in default thereof, the same may be 
recovered in the same way as any other costs payable under an order 
of the said Court, or the same may be recovered by distress in the 
manner hereinbefore provided in other cases of costs ; and the expense 
of taxing such costs shall be borne by the promoters of the under- 
taking, unless upon such taxation one-sixth part of the amount of 
such costs shall be disallowed, in which case the costs of such taxation 
shall be borne by the party whose costs shall be so taxed, and the 
amount thereof shall be ascertained by the said master, and deducted 
by him accordingly in his certificate of such taxation (r). 

(?) See Se Shades, 8 Beav. 224 ; lake T. Eastern Counties My. Co., 19 L. T. (0. S.) 
323. 

(r) See JEx parte The Great Western Sy. Co., 3 Bly. Oa. 516 ; and Ee Spooner, 1 
K. & .T. 220. An order for taxation cannot be obtained after the costs have been 
paid {Ex parte Somerville, 23 Ch. D. 167 ; 31 W. B. 518). 

[By sect. 84, the company may enter on the lands before purchase, in order to 
survey, but not for any other purpose except after deposit of the price imder the 
following sections.] 

Promoters to LXXXV. Provided also, tHat if the promoters of the undertaking 
entOT on knds ^^^^^ ^® desirous of entering upon and using any such lands before an 
before pur- agreement shall have been come to, or an award made, or verdict 
^kf ' ° de- given for the purchase-money, or compensation to be paid by them in 
posit by -way respect of such lands, it shall be lawful for the promoters of the 
of security, undertaking to deposit (s) in the Bank by way of security, as herein- 
bond, after mentioned, either the amount of purchase-money or compensation 
claimed by any party interested in or entitled to sell and convey such 
lands, and who shall not consent to such entry, or such a sum as shaU, 
* By 30 & 31 by a surveyor appointed by two justices* in the manner hereinbefore 
36 th^^'^' provided in the case of parties who cannot be found, be determined to 
Board of be the value of such lands, or of the interest therein which such party 
Trade ap- jg entitled to or enabled to sell" and convey, and also to give to such 
surveyor. party a bond (<), under the common seal of the promoters, if they be a 
corporation, or, if they be .not a corporation, under the hands and 
seals of the promoters, or any two of them with two sufficient sureties, 
to be approved of by two justices* in case the parties differ, in a penal 
sum equal to the sum so to be deposited conditioned for payment to 
such party, or for deposit in the Bank («) for the benefit of the parties 
interested in such lands, as the case may require under the provisions 
herein contained of all such purchase-money or compensation, as may 
in manner hereinbefore provided be determined to be payable by the 
promoters of the undertaking in respect of the lands so entered upon, 
together with interest thereon, at the rate of five pounds per centum 
per annum, from the time of entering on such lands, untU such pur- 



LANDS CLAUSES CONSOLIDATION ACT, 1845, 47 

chase-money or compensation shall be paid to any sueh party or 7 & 8 Vict, 
deposited in the Bank for the benefit of the pajrties interested in such °- 1^' «■ 69-87. 
lands, under the provisions herein contained («) ; and upon such 
deposit by way of security being made as aforesaid, and such bond 
being delivered or tendered to such non-consenting party as aforesaid, 
it shall be lawful for the promoters of the undertaking to enter upon 
and use such lands without having first paid or deposited the pur- 
chase-money or compensation in other cases required to be paid or 
deposited by them before entering upon any lands to be taken by them 
under the provisions of this or the special Act. 

(«) See Kerr on Injunctions, p. 134, as to this section. The section does not Landowner's 
apply to interference with an easement {Clark v. School Board for Zondon, 9 Ch. rights, inde- 
120). The company are not to proceed under this section unless there is an urgent pendently of 
need for imme<Uate entry {Field^ v. Carnarvon Sy. Co., 5 Eq. 190) ; but they may deposit, 
proceed under it after notice of their intention to summon a jury {Langham v. 
G. N. By., 1 De Gr. & Sm. 486). The payment of the deposit by the railway com- 
pany does not deprive the landowner of his right to have the value of the land 
ascertained afterwards, and to have the ordinary Uen of a vendor both for such 
actual value and for the coifipensation for severance and inconvenience ( Walker v. 
Ware, #c. Sy. Co., 35 Beav. 52 ; 1 Eq. 195) ; and see Wmg v. Tottenham Ry., 3 Ch. 
740; SettyY. L. C. $ D. My., W. N. (1867), 169. The valuation made of the 
premises must be a proper one (Cotter v. Metropolitan Sy., 12 W. R. 1021 : 10 Jur. 
N. S. 1014). 
" As to what the deposit covers, see note (y) to s. 87, infra. 

[t) The production of the bond by the company is sufficient evidence that the 
condition thereof has been performed {Be Z. | iV. W. Ry., 26 L. T. 687). If the 
bond is not performed the landowner may apply to have the money in Court paid 
out to him {Se Mutlow, 10 Ch. D. 131). 

(«) See as to payment into Court of additional purchase-money, found to be 
payable {Ex parte London, Tilbury, and Southend Ry. Co., 1 W. R. 533 : Ashford v. 
i. C. ^ D. Ry. Co., W. N. (1866), 288 ; 14 L. T. 787). 

(») As to the interest payable where the entry was originally wrongful, but the Interest, 
requirements of the statute have been afterwards satisfied, see Willey v. South 
Eastern Ry. Co., 1 M. & G. 59. See also as to interest Re Wolff, W. N. (1868), 66 ; 
Re Navan Ry., I. E., 10 Eq. 113 ; Rhys v. Dare Valley Ry., 19 Eq. 93. 

LXXXVI. The money so to be deposited as last aforesaid shall be Upon deposit 
paid into the Bank in the name and with the privitv of the Accountant- ^^™? ""^"^^ 

C3iRlll6P to 

General* of the Court of Chancery in England, or the Court of give receipt. 
Exchequer in Ireland, to be placed to his account there to the credit *_See now 
of the parties interested in or entitled to sell and convey the lands so ^ ^^ s 4^° 
to be entered upon and who shall not have consented to such entry, 
subject to the control and disposition of the said Court ; and upon 
such deposit being made, the cashier of the Bank shall give to the 
promoters of the undertaking, or to the party paying in such money 
by their direction, a receipt for such money, specifying therein for 
what purpose and to whose credit the same shall have been paid in. 

LXXXVii. The money so deposited as last aforesaid shaU remain Deposit to 
in the Bank by way of security to the parties whose lands shall so ^^^^^ ^^^ 
have been entered upon, for the performance of the condition of the to be applied 
bond to be given by the promoters of the imdertaking as hereinbefore ^ ^-^''^of 
mentioned, and the same may, on the application by petition of the the Court, 
promoters of the imdertaking, be ordered to be invested {to) in Bank 
Annuities or Government securities, and accimiulated ; and upon the 
condition of such bond being fully performed it shall be lawful for the 



48 



LANBS CLAUSES CONSOLIDATION ACT, 1845. 



7 & 8 Vict. Court of Chancery in England,* or the Court of Exchequer in Ireland, 
e. 18, s. 69-87. ^p^j^ g^ ^jj^g application, to order (a;) the money so deposited or the 
funds in which the same shall have been invested, together with the 
accumulation thereof, to be repaid (y) or transferred to the promoters 
of the undertaking (z), or if such condition shall not be fully per- 
formed, 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 so have been deposited (zz). 



* See Judi' 
cature Act, 
1873, 8. 34 

(2). 



Investment of 
deposit. 

Repayment of 
deposit. 



Deposit re- 
paid though 
vendor's costs 
are not paid ; 



though award 
is disputed ; 

though the 
company has 
to pay costs 
of a suit ; 



though pur- 
chase goes 
ofE. 



Kot repaid 
where a con- 
tract is after- 
wards entered 
into. 

Eepayment to 
secretary. 



Bepayment to 
landowner. 



(»•) On application by the promoters for investment the landowner need not he 
served [Ex parte Carmarthen Ey., 2 N. R. 516). The application is now made by 
summons ; see E. S. C. 1883, Ord. LV. r. 2, infra. 

(x) For form of order for repayment of deposit, see Seton, 1438, 1439. 

As to when the application for repayment of the deposit may be made by sum- 
mons, see E. S. 0. 1883, Ord. LV. r. 2, infra ; and as to the costs of a landowner 
who is served and appears, see R. S. C. 1883, Ord. LXV. r. 27 (19), infra; Me 
Tottenham Ey., 14 W. K. 669 ; but see Ex parte Stevens, 2 Ph. 772. 

(y) The deposit is not subject to any lien for the costs of the vendor, but upon 
due performance of the condition the company are entitled to have the money paid 
out, notwithstanding that a question may be pending with respect to such costs 
(Ex parte Stevens, 2 Ph. 772 ; Ex parte Great Northern By., 16 Sim. 169 ; 5 Rly. Ca. 
269; Ex parte London, Chatham and Dover By., W. N. (1868), 75; and see Be 
Neath and Brecon Ef. 9 Ch. 263) ; or notwithstanding that the landowner is 
proceeding at law to set aside the award (Be Fooks, 2 M. & Gr. 357). So in Be 
Birmingham, -Wolverhampton, and Dudley By., 3 N. E. 290, where that company had 
paid money into Court in respect of lands on which they desired to enter, but an 
opposition company had filed a bill to restrain such entry, and the Birmingham 
Company in consequence gave up their intention to purchase the lands, the opposi- 
tion company asked that the deposit should not be paid out to the Birmingham 
Company until they had paid the costs of the suit for an injunction, and contended 
that as the conditions of the bond given by the company had not been fulfilled, the 
Court had a discretion as to allowing the money to be paid out ; but V.-C. Wood 
held that the words of the section relating to the non-fulfilment of the bond, did 
not apply to cases where the only reason why the condition of the bond was not 
fulfilled was that neither party desired it, and he allowed the money deposited to 
be paid out. The deposit is only applicable as security for the landowner actually 
treated with, and not as security for his mortgagees, though the company ought to 
have treated with them [Martin v. Zondon, Chatham and Dover By. Co., 1 Ch. 501) ; 
nor is it subject to any lien for any sum beyond what is included in the bond, e. g., 
compensation for minerals [Ex parte Neath and Brecon By., 2 Ch. D. 201). 

Where a company, after paying a deposit into Court and entering on lands under 
these sections, afterwards concluded the purchase by contract, the Court refused to 
pay the deposit oiit unless the vendor joined in the petition, or was served with a 
copy of it [Ex parte South Wales Ey. Co., 6 Ely. Ca. 151) ; see Ex parte Eastern 
Counties By. Co., 5 Ely. Ca. 210. 

(2) It was held on petition by a railway company for repayment of money 
deposited under these sections to the secretary of the company, that payment might 
be ordered on the petition being stamped with the company's seal, without the 
necessity of verifying the seal {Ex parte London, Chatham and Dover By. Co., 
8 W. E. 636). 

(zz) If the company do not perform the condition of their bond the landowner may 
apply to have the money paid out to him [Be Mutlow, 10 Ch. D. 131 ; 27 
W. E. 245). 



PARLIAMENTARY DEPOSITS ACT, 1846. 49 



PAELIAMENTAET DEPOSITS ACT. » ^^17'"^- 

9 & 10 VICT. Cap. 20. 



0. 20. 



An Act to amend an Act of the Second Year of Her present Majesty 
for providing for the Custody of certain Monies paid, in pursuance 
of the Standing Orders of either Souse of Parliament, hy Sub- 
scribers to WbrJcs or Undertakings to be effected under the authority 
of Parliament. [18tli June, 1846.] 

[Sections 1-4 provide for payment of sums of money, required by any Standing gg. 1 4. 

Order of Parliament to be deposited by the subscribers to any undertaMng, which 
is to be executed under the authority of an Act of Parliament, into Court, by 
persons named in the warrant of one of the clerks of the House to the account ex 
parte the work or undertaking mentioned in such warrant or order ; and for interim 
investment in Bank Annuities, or any Government security or securities at the 
option of the aforesaid person or persons, or the survivor or survivors of them. 
The fund may be invested in amy of the securities sanctioned by the Court ; see Re 
Southwold Sill, 1 Ch. D. 697 ; Bx parte St. John's College, 22 Ch. B. 93 ; but see Mx 
parte G. N. Hy., 9 Eq. 274. The petitioners must employ the broker of the Pay- 
master-General {-Se Undertaking of West Hiding, ^e., W. N. (1876), 80 ; Ex parte 
Saltan Sij., 24 W. R. 451).] 

V. And be it enacted, tliat on the termination of the Session of Repayment 
Parliament in -^^^Mch. the petition or hiU for the purpose of making ° deposi . 
or sanctioning any such work or undertaking shall have been intro- 
duced iato Parliament, or if such petition or bill shall be rejected or 
finally withdrawn (a) by some proceeding in either House of Parlia- 
ment, or shall not be 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 be passed authorising the 
making of such work or undertaking, and if in any of the foregoing 
cases the person or persons named in such warrant or order, or the 
survivors or survivor of them, or the majority of such persons, apply 
by petition (A) to the Court, the Court shall by order direct the sum 
of money paid in pursuance of such warrant or order, or the stocks, 
funds, or securities in or upon which the same may have been invested, 
and the interest or dividends thereof, or the exchequer biUs, stocks, 
or funds so deposited or transferred as aforesaid, and the interest 
and dividends thereof, to be paid or transferred to the party or parties 
so applying, or to any other person or persons (e) whom they may 
appoint in that behalf ; 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 presented, or of an Act 
being passed authorising the making of such work or undertaking, 
unless upon the production of the certificate of the Chairman of 
Committees of the House of Lords with reference to any proceeding 
in the House of Lords, or of the Speaker of the House of Com- 
mons {d) with reference to any proceeding in the House of Com- 
mons, that the said petition or bill was rejected or not allowed to 
proceed, or was withdrawn during its passage through one of the 



50 



PARLUMENTAET DEPOSITS ACT ,1846. 



9 & 10 Vict, 
c. 20, s. 6. 



Granting 
certificate, 
&c., not to 
make the 
Chairman or 



ter sign- 
ing the same 
liable. 



Houses of Parliament, or was not presented, or that such Act was 
passed, -whicli certificate the said Chairman or Speaker shall grant on 
the application in writing of the person or persons, or the majority 
of the persons named in such warrant, or the survivor or survivors of 
them: Provided always, that the granting of any such certificate, 
or any mistake or error therein or in relation thereto, shall not make 
the Chairman or Speaker signing the same liable in respect of any 
monies, stocks, funds, and securities which may be paid, deposited, 
invested, or transferred in pursuance of the provisions of this Act, 
or the interest or dividends thereof (e). 



(a) Payment out of part of a deposit on withdrawal of part of the undertaking 
was refused (Se Aherystwith Ity., .3 De G. F. & J. 301 ; 7 Jur. N. S. 564). , 

(i) By R. S. C. 1883, Ord. LV. r. 2 (6), aU applications under this Act for invest- 
ment, payment of dividends, and payment out oi Court, are to be made by summons. 
As to what is sufficient authority to enable the Court to order payment or transfer 
out, see iJe Dartmouth Sy., 9 W. R. 609 ; Bx parte L. C. % D. By., 8 W. R. 636 ; 
Ex parte Brompton Waterworks, 8 W. R. 636, n. ; Re Warwick By., 13 Sim. 31 ; 
Be Staines By., 9 Jur. 479 ; DanieU, p. 2133 ; Setou, p. 1457. ' 

(c) Payment maybe made to the bankers or solicitors of the company {Be Warwick 
By. ; Be Dartmouth By.) . An application for payment out may be made in the 
Xjong Vacation (Be Wigam Bailways Act, 10 Ch. 541). 

(<2) The Deputy-Speaker's certificate was held sufficient (Mx parte Stockhridge Bail- 
way Bill, 2 Eq. 364 ; 12 Jur. N. S. 465). The passing of the Act may also be proved 
by the production of a Queen's Printer's copy of the Act {Be Yarmouth By., W. N. 
(1871), 236). 
Railway (^) The deposit will also be paid out on the abandonment of a railway under 32 & 

Abandonment 33 Vict. c. 114, s. 34. As to conflict of claims to the parliamentary deposit of -am 



Act, 1867. 



Standing 
Orders, 1882. 



insolvent company, see Be Barry By. Co., 4 Ch. D. 315 ; Be Brampton By. Co., 10 Eq. 
613 ; Be Kensington Station Act, 20 Eq. 197 ; Be Manchester and Milford By., W. N. 
(1881), 125. The costs of petition for payment out have been ordered to be paid out 
of the general assets of the company {Be La^ugharne By., 12 Eq. 454). 

Eor the Standing Orders relative to Private BUls, 1882, providing for the inser- 
tion of clauses as to penalties, retention of the deposit (notwithstancUug 9 & 10 Vict. 
u. 20), application of the deposit if the line is not duly completed, and other matters, 
see Daniell, vol. ii. p. 2133 et seq., and cases there cited. 



10 & 11 Vict. 
0. 96. 



TEUSTEE EELIEF ACT, 1847. 

10 & 11 VICT. Cap. 96. 

An Act for better securing Trust Funds, and for the Belief of 
Trustees. [22nd July, 1847.] 

Whekeas it is exjjedient to provide means for better securing trust 
funds, and for relieving trustees from the responsibility of administer- 
ing trust funds in cases where they are desirous of being so relieved : 
Trustees may Be it enacted, &o., that all trustees, executors, administrators, or other 
mouicTor persons (o), having in their hands any monies belonging to any trust 
transfer stock whatsoever, or the major part of them, shall be at liberty, on filing an 
into Court. affidavit (5), shortly describing the instrument creating the-trust, accord- 
ing to the best of their knowledge and belief to pajr(c) the same, 



TRUSTEE EELIEP ACT, 1847. 51 

■witli the privity of the Accountant-General* of the High Court of 10 & 11 Vict. 
Chancery,! into the Bank of England, to the account of such Accoun- °- ^^' "' ^- 
tant-General* in the matter of the particular trust {d), (describing the * Now the 
same hy the names of the parties, as accurately as may he, for the Q-e^al ^^' 
purpose of distinguishing it), in trust to attend the oi?ders of the said 33 & 36 Vict. 
Court, and that all trustees or other persons having any annuities or ,'„ ' j" j" 
stocks (e) standing in their name in the books of the Governor and ture Act, 
Company of the Bank of England, or of the East India Company, or ]-^^J.^' =■ 3* C^)' 
South Sea Company, or any Government or ParHamentsiry securities 
standing in their names (/), or in the names of any deceased persons 
of -whom they shall be personal representatives, upon any trusts what- 
soever, or the major part of them (/), shall be at liberty (y) to transfer 
or deposit such stock or securities into or in the name of the srtid 
Accountant-General, with his privity, in the matter of the particular 
trust (describing the same as aforesaid), in trust to attend the orders , 

of the said Court (h) ; aild in every such case the receipt of one of the Receipt of 
cashiers of the said Bank for the money so paid, or in the ease of or certificate 
stocks or securities, the certificate of the proper officer, of the transfer «* proper 
or deposit of such stocks or securities, shall be a sufficient discharge (i) sufficient dis- 
to such trustees or other persons for the money so paid, or the stocks charge. 
or securities so transferred or deposited. 

As to costs under the Aot, see note (A), infra, p. Si. 

As to wl»t questions will be decided on petition under the Aot, see note (t), p. 57, 
infra. 

An order under this Aot has the same force as a decree (Re Smyth, 11 "W. E. 
850). 

The time allowed for appealing from an order made under the Aot is that allowed 
for appealing from an interlocutory order, viz., twenty-one days (Se Baillie, 4 
Ch. D. 785 ; R. S. C. 1883, Ord. LVIH. rr. 9, 15, infra). 

Payment of money into Court, under an Aot, is a " suit or matter actually Sanction of 
pending," so as to giro the Court jurisdiction to make orders as to charity monies Charity Corn- 
paid in, without the sanction of the Charity Commissioners, which by 16 & 17 Viot. missioners to 
c. 137, s. 17, is necessary for aUlegal proceedings not being applications in a swij orders re- 
ar matter actually pending (Re St. Giles' Volunteer Corps, 25 Beav. 313 ; and see Re lating to 
Ckeshunt College, I Jwc. N. S. 995 ; Att.-Gen. v. Cooper, 10 W. E. 31) ; but where charity 
an order has been made, which is in effect final, the matter is no longer "pending," money, 
and the sanction of the Commissioners must be obtained for further proceedings 
(Re Jarvii Charity, 1 Dr. & Sm. 97) ; and see Bratmd v. Barl of Devon, 3 Ch. 
p. 806. 

Money belonging to a charity in the hands of trustees or other persons may now 
be paid by them to the Ofacial Trustee of Charitable Trusts (18 & 19 Vict. o. 124, 
88. 22, 23) ; and trustees of a charity fund should not as a rule bring the fund into 
Court under the Trustee Eelief Act, but should apply to the Charity Commissioners 
for their advice and direction [Re Foplar School, 8 Ch. D. 643). 

By the Judicature Act, 1873, s. 26 (6), any debtor trustee or other person liable Judicature 
in respect of any debt or other legal chose in action which has been absolutely Act, 1873, 
assigned in writing, may if he has notice that the assignment is disputed by the s. 23 (6). 
assignor or any one claiming imder him, or of any othen opposing or conflicting 
claims to such debt or chose in action pay the same into Court in conformity with 
the provisions of the Trustee Eelief Acts ; see this section and notes thereto, infra. 

Where the money which it is desired to pay into Court belongs to infants, use Legacy Duty 
may be still made of the 36th Geo. 3, cap. 62, which applies whether there is any Act. 
difficulty in the execution of the trust or not. The 32nd section enacts, that where 
by reason of the infancy or absence beyond the seas of any person entitled to any 
legacy, or to the residue of any personal estate or any part thereof chargeable with 
duty by virtue of this Aot, the person or persons having or taking the burden of any 
will or testamentary instrument, or the administration of such personal estate, 
cannot pay such- legacy or some part thereof, although he, she, or they may have 
effects for that purpose, or oannpt pay such residue or some part thereof, although 

Ii2 



62 



TRUSTEE EELIEF ACT, 1847. 



Payment in. 



Transfer and 
payment out. 



10 & 11 Vict, he, she, or they may have the same or some part thereof in his, her, or their hands, 
o. 96, s. 1. it shall be lawful for such person or persons to pay such legacy or residue, or any parts 

or part thereof respectively, or any sum or sums of money on account thereof, after 

deducting the duty chargeable thereon, into the Bank of England, -with the privity of 
the Paymaster-General, and such payment into the Bank shall be a sufficient dis- 
charge for the money so paid in, provided the duty be also paid thereon as aforesaid, 
and such money, with the dividends thereon, shall be transferred and paid to the 
person or persons entitled thereto, or otherwise applied for his or their benefit, on 
application to the Chancery Division by petition or motion in a summary way : Pro- 
vided always that, if it shall afterwards appear that such money or any part thereof has 
been improperly paid into the Bank as aforesaid, it shall be lawful for the Court, upon 
petition in a summary way, to dispose thereof, in such manner as justice shall require. 
Where the legacy or share of residue consists of cash no order is necessary for 
payment in ; but where it consists of stock an order must be obtained, which may 
be made ex parte on motion (Ex parte Bennett, 15 Jur. 213), petition [Se Watlington, 
\ W. E. 194), or summons {Re Thomas, M. R. at Chambers, 8 July, 1869, Reg. Lib. 
B. 2305). It is now usually made on summons ; see Daniell, p. 2200. 

The fund and the dividends thereon may be transferred and paid to the person 

entitled, or otherwise applied for his benefit, on application to the Court by ex parte 

petition or motion in a summary way (s. 32, and see Daniell, p. 2200). See also 

R. S. C. 1883, Ord. LV. r. 2 (1), infra; Re Barker, W. N. (1884), 237. 

Where the By R. S. C. 1883, Ord. LV. r. 2 (4), applications under the Legacy Duty Act, 

fund is imder where the money or securities in Court do not exceed 1,000^. or 1,000^. nominal 

1,000/. value, must be made by summons at chambers. 

Applications for advancement to an infant out of a fund in Court which exceeds 
1,000Z. must be made by petition {Re Obore, W. N. (1883), 169). 

For the mode of investment under the Act, see r. 73 of the Supreme Court Funds 
Rules, 1884, infra, p. 234. 

The Court has refused to pay out to the testamentary guardian of an infant sums 
paid in under the Legacy Duty Act {Re Gresswell, 30 W. R. 244). 

Payment into Court of an infant's legacy under the Act does not make the infant 
a ward of Court {Re Hillary, 2 Dr. & Sm. 461). 

For other cases under the Act, see Whopham v. Wingjield, 4 Vea. 630 ; Reinell v. 
Simpson, 18 L. J. Ch. 56. 

As to the power of a County Court judge to order payment into Court under the 
Legacy Duty Act, see 28 & 29 Vict. o. 99, s. 5 : Pitt-Lewis on County Courts, p. 
520. 

Where it is doubtful to whom a legacy is payable it is often the better course to 
take the opinion of a judge on summons ratiier than pay the money into Court 
under the Trustee Relief Act ; see Re Birkeit, 9 Ch. D. 576 ; 47 L. J. Ch. 846 : 27 
W. R. 164 ; 39 L. T. 418 ; and see also R. S. C. 1883, Ord. LV. r. 3, infra. 

The County Courts have jurisdiction under the Trustee Relief Acts, where the 
trust fund does not exceed 500?. ; see 28 & 29 Vict. u. 99, b. 1 (5) ; Pitt-Lewis' on 
County Courts, p. 1041. 

(a) A mortgagee who has sold vmder his power of sale, and is in doubt as to who 
is entitled to the balance of the money, may pay it into Court under this Act 
{Roberts v. Ball, 24 L. J. Ch. 471 ; 1 Jur. N. 8. 585 ; 3 W. R. 466 ; Re Sardley, 10 
Ch. D. 664 ; 48 L. J. Ch. 335; Re Walhampton Estate, 26 Ch. D. 391). But a 
purchaser of an estate subject to a charge is not within the Act {Re Buckley, 17 
Beav. 110 ; 17 Jur. 478) ; nor is a banking company which has received notice of 
conflicting claims to money placed with it on deposit {Re Sutton, 12 Ch. D. 176 ; 
48 L. J. Ch. 360 ; 27 W. R. 429) ; nor an insurance company, unless the policy is 
subject to some trust {Matthew v. Northern Assurance Co., 9 Ch. D. 80 ; 47 L. J. 
Ch. 562 ; 27 W. R. 61 ; 88 L. T. 468 ; Re Hai/cock, 1 Ch. D. 611 ; and see Re 
Vmted Kingdom Assurance Co., 34 Beav. 493 ; li Jur. N. S. 424 ; 6 N. R. 59 ; Re 
Webb, 2 Eq. 456 ; 12 Jur. N. S. 595 ; Re Moseley, 18 W. R. 126 ; Sankey v. Mm-ley, 
4 Jur. N. S. 234 ; Re Hall, 10 W. R. 37 ; 5 L. T. 396). See, however, Jud. Act, 
1873, s. 25 (6), cited above. 

As to a stakeholder, see Re United Kingdom Assurance Co. ; Re Hall; Matthew v. 
Morthern Assurance Co. ; ReKemptner, 8 Eq. 286. Where there was a power of sale 
without a power of giving receipts, the Court intimated that the purchase- money 
might be paid into Court under the Act {Cox v. Cox, 1 K. & J. 251). Executors 
may pay in money which they claim beneficially {Re Henshaw, 10 Jur. N. S. 837). 
As to payment into Court by liq uidators of a company, see Re Australian Co., W. N. 
(1877), 37. , 

(*) In general the affidavit should be made by all the trustees, but the affidavit of 
one of two trustees has been held sufficient {Anon. 1 Jnr. N. S. 974). 

The amount to be brought into Court should be expressed in the affidavit in words 
and not in figures {Re Walts, 24 W. R. 701). 

If between the filing of the affidavit and the actual bringing of the money into 
Court, the trustee becomes aware of further claims, he shomd file a supplemental 



County Court 
jurisdiction. 

Trustee Relief 
Act. 



County Court 
jurisdiction. 

Who may 
pay money 
into Court 
under the 
Act. 



Affidavit of 
one trustee. 



Supplemental 
affidavit. 



TRUSTEE RELIEF ACT, 184?. 53 

affidavit ; and if he omits to do this he may have to pay any costs occasioned by 10 & 11 Viot. 
his omission [EeAllen, 27 W. R. 529 ; 40 L. T. 466). But see next paragraph. c. 96, s. 1. 

As to' the present form of affidavit on payment into Court under the Act, see 

X. 41 of the Supreme Court Funds Rules, 1884, infra, p. 225. It differs consider- Form of 
ably from that prescribed by r. 34 of the Chancery Funds Consolidated Rules, 1874 affidavit. 
(9 Ch. xlui), now repealed. Notice of the payment into Court (in accordance with 
r. 5 of the Chancery Funds Amended Orders, 1874) should, however, still be given 
to the " persona interested in or entitled to " the fund, in the same way as if r. 34 
were still iu existence (Se Stming, W. N. (1884), 142); and it is a convenient 
practice, therefore, for the trustee to name these persons in his affidavit. 

The Chancery Funds Amended Orders, 1874 (which are only repealed so far Chancery 
as they are inconsistent with the Supreme Court Funds Rules, 1884), provide as Funds 
follows : — 

5. "A person having made a payment or transfer of money or securities into, or a Amended 
"deposit of securities in Court under the above-mentioned Act of 10 & 11 Vict. Orders, 1874. 
" 0. 96, shall forthwith give notice thereof to the several persons named iu his Chancery 

" affidavit to be made in pursuance of Rule 34 of the Chancery Funds Consolidated Pundg 
" Rules, 1874, and the said Act, as interested in or entitled to such money or Amended 
" securities. _ Orders, rr. 5 

6. " The persons interested in or entitled to any money or securities so paid or .jq. 

" transferred into, or deposited iu Court, in pursuance of the said Act of 10 & 11 jq-Qi;„g gf 
" Vict. c. 96, and named in the affidavit, or any of such persons, or the person so -naymgui 
" paying or transferring into or depositing in Court, may apply by petition, or in -P ^ " 
" cases where the fund does not exceed 300?. cash or 3002. iu securities, by Application 
"summons, as occasion may require, respecting the investment, payment out, or lor payment 
" distribution of the money or securities, or of the dividends or interest of such '"^''• 
" securities. [See now Ord. LV. r. 2, infra.'] 

7. " A person who has paid or transferred money or securities into, or deposited On notice to 
" securities in Court pursuant to the said Act of the 10 & 11 Vict. o. 96, shall be trustees, &o. 
" served with notice of any application made to the Court, or judge iu chambers, 

" respecting such money or securities, or the dividends thereof, by any person 
" interested therein or entitled thereto. 

8. "The persons interested in or entitled to such money or securities shall be And to 

" served wit3i notice of any appUoation made by the trustee to the Court, or judge, persons in- 

" respecting such money or securities, or the dividends thereof. terested. 

9. " No petition relating to such money or securities as mentioned in the last four pi f .„ 
" preceding Orders shall be set down to be heard, and no summons relating thereto . 

" shall be sealed until the petitioner or applicant has first named in his petition or 
f summons a place where he maybe served with any petition or summons, or notice 
" of any proceeding or order relating to such money or securities, or the dividends 
" thereof. 

10. "Petitions presented and summonses issued under the said Act of 10 & IJ Title of 
" Vict. 0. 96, shall be entitled iu the matter of the said Act, and in the matter of petition. 
" the particular trust. 

11. " Every petition for dealing with money or securities iu Court, chargeable Payment of 
" with duty payable to the revenue under the Acts relating to legacy or succession duty. . 

" duty, or the dividends on such securities, shall contain a statement whether such 
" duty or any part thereof has or has not been paid." 

The notice to the persons interested required by r. 5 may be dispensed with in Notice dis- 
the case of persons who cannot be found (iJe Hamford, 7 W. R. 199 ; Be Walters, pensed with. 
22 L. T. 120 ; Ee Whitaker, 31 W. R. 114 ; W. N. (1882), 158). Where they are 
resident abroad, notice may be given by registered letter {Ee Merryweather, 22 
L. T. 603) ; or if their address is not known, by advertisement in the newspapers 
(Be Goodsman, W. N. (1870), 152 ; Ee Palmer, W. N. (1873), 101 ; Ee Eardley, 

10 Ch. D. 664 ; 48 Ii. J. Ch. 335). But the Court has no jurisdiction to give 
directions as to the mode of giving notice which will free the trustee from responsi- 
bility [Be Sardley). 

(c) No order for making the payment, transfer or deposit into or in Court, of 
money or of Government securities is required (Daniell, 2071 ; Ee Biggs, 11 Beav. 
27). As to transfer of private securities, see post, note («). 

(d) The fund diould be lodged to the credit of a particular trust (Ee Joseph's Will, To what 

11 Beav. 625 ; Ee Everett, 12 Beav. 485 ; and see Ee Godfrey, 2 Ir. Ch. Rep. 105 ; account fund 
Be Monohan, I. R. 8 Eq. 353) ; and the title of the trust should be as limited in should be 
designation as possible (Ee Coulson, i Jur. N. S. 6). Comp. Ee Tillatone's Trusts, paid in. 

9 Hare, App. lix, where it was held that . a fund bequeathed in aliquot parts on 
distinct trusts ought to be carried to separate accounts ; EeWright, 3 K. & J. 419 ; 
and see Be Perry, W. N. (1874), 61 ; 22 W. R. 432, where the stock was of a kind 
not admitting of division below 11. Where a fund had been paid in to the general 
account of a testator's will, the Court at first declined to pay it out to the residuary 
legatees ; but upon consideration of the will it was ordered that the fund should 



54 

10 & 11 Vict. 
0. 96, s. 1. 

Where fund 
is paid ia 
" upon the 
trusts of a 
Trill." 
Transfer to 
separate 
account. 
Where some 
claimants are 
not named. 



What securi- 
ties may he 
paid in. 

Payment in 
by surviving 
trustees ; 
or by' a 
majority of 
the trustees. 
Trustee not 
compelled to 
pay in. 

Costs under 
the Act. 



Costs of 
trustees. 



Payment into 
Court is justi- 
fied where 
there are 
lunatic or 
infant cestuis 
que trust. 
Where there 
is a doubt 
■who are 
interested. 



TRUSTEE RELIEF ACT, 1847. 

be carried over to an account entitled "the account residue," subject to the 
particular legacies (Re Robinson's Trust, 1 Jur. N. S. 750). Where a fund is paid 
into Court "upon the trusts of a will," it has been held that the general ad- 
ministration of the testator's estate becomes necessary, and the Court will not order 
it to be transf eiTed to a particular account, except on admission of assets by the 
personal representative, or on the responsibUity of the trustee [Be Wnghi s Trusts, 
15 Beav. 367 ; cf. Re Edwards, 4 W. U. 801). . . , j. , -z 

But in a later case (Re Coulson, 4 Jur. N. S. 6), V.-C. Wood ordered a fund paid 
in to the general account of a testator's will to be carried over to the separate 
account of the person (an infant) named in the trustee's af&darit, as the only person 
entitled, without preriously directing the name of the account to be changed. 

Where trustees paid a fund into Court to the account of one of the claimants, 
without giving, at the same time, notice to the Court of the adverse claims, 
payment of the fund to the person in whose name it stood was ordered by the 
Court, but without prejudice to any future question as between the trustees and 
the adverse claimants [Re Jenkins, 3 N. R. 408) ; and see Crame v. Cooper, IJ. & 
H. 207, 214, and the cases cited ^osi, p. 58. In Ex parte Toumai/, 3 De G-. & Sm. 
677, money paid in by an executor in ignorance of debts was paid out to him by 
consent. 

(«) I'oreign bonds seem not to be within the Act [Re Lloyd, 2 W. R. 371). All 
Railway Stock and India Stock, may, on the application of the trustees, be 
directed to be brought into Court {Re Gledstanes, W. N. (1878), 26 ; Re Ross, 28 
W. R. 418 ; Re Ferry, 22 W. R. 432; W. N. (1874), 61) ; but this can only be 
done under the provisions of the Amendment Act, 12 fe 13 "Vict. c. 74, post. 

(J) The payment in may be made by the survivors of several trustees {Re Farry, 
6 Ha. 306 ; 12 Jur. 721) ; and as to the payment in by a majority of the trustees, 
see 12 & 13 Vict. o. 74, and notes thereto, infra, p. 60. 

{(/) A trustee who prefers to act personally in the trust cannot be compelled to 
pay the trust fund into Court {Mountain r. Young, 18 Jur. 770 ; SandUy v. Bavies, 
28 L. J. Ch. 873 ; 5 Jur. N. S. 190). But where a trustee being requested to pay 
money into Court, refused, and thereby made a suit necessary, he had to pay the 
costs of it {SandUy v. Bavies; and see Gwnnell v. WMiear, 10 Eq. 664 ; 18 W. R. 
883 ; 22 L. T. 645 ; Wells v. jValion., 31 Beav. 48 ; Weller v. Fitzhugh, W. N. 
(1870), 144). An Order may be made for payment in where the majority of the 
trustees are willing, though the rest do not concur (12 & 13 Vict. c. 74, post, p. 60); 

(A) Though the Act makes no mention of costs, it was held that, as the fund 
paid in by the trustee is to be paid in in trust to attend the orders of the Court, it 
therefore became subject to the general jurisdiction of the Court, which included a 
power to order the payment of costs {Re Woodbum, 1 De G. & J. 351 ; Re Armston, 
4 De G. J. & S. 454 ; 10 Jur. N. S. 715). 

And now the costs of and incident to all proceedings in the High Court are in the 
discretion of the Court, with a saving of the right of an executor, trustee, or mort- 
gagee to costs out of the estate unless he has misconducted himself (R. S. C. 1883, 
Ord. LXV. r. 1, infra). 

A trustee paying money into Court is primd facie entitled to his costs of such 
payment in, and of his appearance, when he is served upon the petition or summons 
for payment out, but the Court will exercise a discretion as to such costs if he pays 
the money in vexatiously. 

An executor or administrator, or trustee, may pay money into Court where he 
cannot get a valid discharge otherwise, for example, in cases of infant cestuis que 
trust; see Re Cawthorne, 12 Beav. 56; Re Beauelerk, 11 W. R. 203; Re Coulson, 

4 Jur. N. S. 6 ; Re Richards, 8Eq. 119 ; or lunatic legatees {ReUpfull,^!^. & G. 281 ; 
Re Irby, 1 7 Beav. 334 ; or where the cestui que trustisAeai, dumb, and blind {ReBiddulph 

5 De G. & Sm. 469) ; but in other cases he must have a btm&fide doubt, &o. as to 
the parties entitled {Re Jones, 3 Drew. 679 ; Re JECeadington, 6 W. R. 7, where a 
claim to a trust fund being made by the assignees, under a creditor's deed 
and also by the assignor, it was held that the trustee was not bound to assume 
the deed valid, and might pay into Court ; compare JJe Moseley, 18 W. R. 126). 
Jessel, M. R., held that the trustees of a trust fund to which their cestui que trust 
has become entitled in default of appointment by a tenant for Hfe, are justified in 
paying it over to him on being informed in writing by the solicitor to the parties 
that he has reason to believe that no appointment has been made ; and would be 
free from liability in doing so, and that trustees who, under such circumstances, 
pay the trust fund into Court under the Act will not, as a rule, be entitled to their 
costs {Re Cull, 20 Eq. 661 ; 23 W. R. 850 ; 32 L. T. 853). But payment into 
Court has been held to be justified where a person claimed by representation, for 
there is a possibility of a disposition by the deceased person {Re Lane, 24 L. T. (O.S.) 
181 ; King v. King, 1 De G. & J. 663) ; or where under the old law a married 
woman might claim her equity to a settlement {Re Swan, 2 H. & M. 34 ; but see 
Re Roberts, 17 W. R. 639 ; W. N. (1869), 88 ; Re Brockletby, 29 Beav. 662) ; and 



TRUSTEE RELIEF ACT, 1847. 55 

see Ji« Bendyshe, 3 Jur. N. S. 727 ; 5 W. R. 816 ; Se Wylly, 28 Beav. 458 : Ji!« 10 & 11 Viot. 
Wtlhama, 4 K. & J. 87. u. 96, s. 1. 

For oases where payment in lias been justified on account of a bond fide doubt as '■ 

to some question of law arising on the claim, see and consider King v. King, 1 Be Where there 
6. & J. 663 ; Re Metcalfe, 2 Do G-. J. & S. 122, where the cestui que trust was a is a doubt on 
professed nun ; Gunnell v. Whitear, 10 Eq. 664 ; 22 L. T. 643 ; 18 W. R. 883, and a question of 
observations of Sir aeorge Jessel, M. R., in Re Maclean's Trusts, 19 Eq. 282, where law. 
It was held that a trustee who paid money into Court under .the Act, in oon.aequenoe 
of a claim supported by learned coimsel, and brought forward bond fide by a respon- 
sible solicitor, and a threat that costs would be asked against him personally if he 
did not do so, was justified in the course which he took ; see also Re Phillips, W. N. 
(1882), 134. 

Trustees have been disallowed their costs of appearing on a petition for payment When pay- 
out where they acted with unreasonable caution and suspicion {Re Lealee, 32 Beav. ment into 
135 ; Re Meming, 3 K. & J. 40 ; 2 De G. J. & S. 122 ; Re Covington, 25 L. J. Ch. Court is not 
238 ; 1 Jut. N. S. 57 ; Re Thakeham Monies, 12 Eq. 494 ; Desborotighv. Harris, 5 De justified. 
G. M. & a. 439 ; Firmin v. Pullen, 2 De Gr. & Sm. 99 ; Re Warwick Rearson, 20 
Ij. T. 8 ; 17 W. R. 365) ; or have paid the money in in order to anticipate a bill about 
to be filed against them {Re Waring, 21 L. J. Ch. 784 ; Re Fagg, 19 L. J. Ch. 175 ; 
Att.-Gm. V. Alford, 4 De Gr. M. & Gr. 843) ; or have caused unnecessary expense 
{Re Metcalfe, 3 N. R. 657: e.g., by requiring copies of affidavits, Re Lazarus, 
3 £l. & J. 565). 

In cases of gross misconduct the trustee may even have to pay the costs of the in cases of 
application for payment out ; See Re Woodbum, 1 De Gr. & J. 333,where the trustee gross mis- 
paid the money into Court without waiting for evidence of title, or stating what conduct the 
evidence he should require ; Re Cater (No. 1), 25 Beav. 361, where the ground of trustee may 
paying the money in was an alleged refusal on the part of the persons to whom the have to pay 
fund was payable to give a release by deed ; Re Fortune, I. R. 4 Eq. 351 ; Re Roberts, (josts 
17 W. R. 639 ; Re Elgar, 11 L. T. 415 ; Re Elliot, 15 Eq. 194 ; 42 L. J. Ch. 289 ; 
21 W. R. 455, where tiiere seems to have been no reason for paying the money in 
except a wish to get rid of it ; Re Glendenning, W. N. (1867), 191 fiZe Foligno, 32 
Beav. 131 ; Re Wise, I. R. 3Eq. 599, where the executors of a surviving trustee 
refused to pay the fond to new trustees properly appointed ; Re Abbot, 38 L. T. 
442 ; Re Knight, 27 Beav. 45 ; 5 Jur. N .S. 326, where the trustee neglected to make 
any inquiries as to whether the persons entitled were alive or dead. 

In Re Soskin, 6 Ch. D. 229 ; 6 Ch. D. 281, a married woman under a general 
power appointed a fund by will, and appointed executors. The trustees paid the 
money into Court, aoad upon a petition for payment oiit by the appointees, the 
Court held that the trustees ought to have paid the fund to the executors, and they 
were therefore ordered to pay l£e costs ; but as the executors were the proper per- 
sons to present the petition, the trustees were relieved from the costs occasioned by 
the appointees proving their title. 

The fact that trustees have under a misapprehension paid a fund to an account 
wrongly entitled, is no ground for depriving them of their costs {Re Jenkins, 3 
N. R. 408). 

If the trustee deducts his costs from the fund and pays the balance only into Where the 
Court (which is the usual course), the Court has no jurisdiction on the hearing of costs are 
the petition to make any order as to these costs {Re Bloye, 1 M. & Gr. 488, 504 ; deducted 
Re Leake, 32 Beav. 135 ; 9 Jur. N. S. 453 ; 1 N. R. 417 ; Re Barber, 2 N. R. 571 ; before pay- 
9 Jur. N. S. 1098 ; 11 W. R. 1056 ; Re Fortune, I. R. 4 Eq. 351). But on ordering ment in. 
payment out and taxation of costs, the trustee's costs of paying in maybe included, 
and the sum then deducted by him set off {Re Site, 27 Beav. 337 ; 5 Jur. N. S. 
1235 ; 7 W. R. 562 ; Seton, p. 498 ; Re Sweeper, 19 W. R. 793 ; 24 L. T. 413) ; and 
the trustee must be carefij. not to deduct more than a reasonable amount for his 
costs {Beati/ y. Curson, 7 Eq. 194; 38 L. J. Ch. 161; 17 W. R. 132; 20 L. T. 
61). 

The costs of paying the money into Court, as a general rule, ought to be paid Out of what 
out of the general trust estate, if there be one {Re Cawthorne, 12 Beav. 56 ; Re Jones, 3 fund costs 
Drew. 679). But if there is no general residue, or if the difficulty relates to the are paid — 
fund only, or if the fund paid in has been completely severed and appropriated, they (i) Of paying 
may come out of the fund itseK {Re Lorimer, 12 Beav. 521). in and admi- 

In Mutlow V. Mutlow, 4 De G-..& J. 539, a fund paid into Court imder the Trustee nistration ; 
Relief Act, was ordered to bear a proportionate share of the costs of a suit which 
had been instituted to administer the estate of which it formed part. 

The costs of payment out generally come out of the fund itself {Re Dickson, 1 (2) of paying 
Sim. N. S. 37; Re Ross, ibid. 196; Re Jones, 3 Drew. 679; Re Robertson, 6 W. R. out the corpus : 
405 ; Re Wilson, 14 W. R. 161). But as leave may be given to bring an action, 
which would have the effect of throwing such costs upon the general estate {Re 
Sharpe, 15 Sim. 470 ; Re Feltham, 1 K. & J. 628), so the Court has jurisdiction on a 



36 



TRUSTEE RELIEF ACT, 1847. 



10 & 11 Vict. 
o. 96, s. 1. 



(3) of paying 
«at income. 



Two peti- 
tions. 



CoBts of per- 
sons served. 



Trustee dis- 
charged not 
from liability 
(except as to 
monies paid 
in). 



but from 
control and 
active duties, 
&c. 



He is still 
liable to re- 
ceive notices, 
&o. 



petition to order the costs of payment out to be paid out of the residue {Re Trick, 
5 Ch. 170 ; 39 L. J. Ch. 201 ; 18 "W. R. 123 ; 21 L. T. 739, overruling Se Bartholo- 
mew, 13 Jul-. 380 ; Re Hodgson, 18 Jur. 786 ; 2 Eq. R. 1083). In Re Feltham, the 
costs of the executors who had paid the fond into Court were ordered to come out of 
the general residue ; and see Re Birkett, 9 Ch. D. 576. 

Where a sum of stock representing sixteen shares in a legacy, five of which were 
held to have lapsed, was transferred into Court, Lord Cranworth, V.-C, held that 
the lapsed shares ought to bear the costs of the petitioners and respondents (Re 
Sam's Trust, 2 Sim. N. S. 106). 

Trustees who are made respondents and have accepted 30«. for their costs, will 
not be allowed their costs of appearing on the petition, unless they come for some 
useful purpose {Se Sutton, 21 Ch. D. 855 ; 30 W. R. 667 ; R. S. C. 1883, Ord. LXV. 
r. 27 (19), infra), 

Upon an application by a tenant for life for payment to him of the dividends on a 
fund paid into Court under the Act, all the costs of the application, both those of 
the tenant for life and of the trustees, are payable out of the income (Re Marner, 3 
Eq. 432 ; 36 L. J. Ch. 68 ; 15 W. R. 99 ; 15 L. T. 237 ; -Be Hvans, 7 Ch. 609 ; 41 
L. J. Ch. 612 ; 20 W. R. 696 ; 26 L. T. 815 ; He Whitton, 8 Eq. 352 ; JRe Smith, 9 
Eq. 374; Re Battell, 21 W. R. 138; Re Cameron, I. R. 1 Eq. 258; Re Munton, 22 
L. T. 293 ; W. N. (1870), 106 ; Re Mason, 12 Eq. Ill) ; but the costs incurred by 
the trustee in and about and preliminary to the payment into Court are payable out 
of the corpus where not previously deducted [Re Whitton). The cases of Re Wood, 
11 Eq. 155 ; Se Gordon, 6 Eq. 336 ; Re Knight, 37 L. J. Ch. 409 ; Re Tanner, 14 
L. T. 589 ; and Re Turnley, 1 Ch. 152, are overruled. Where the money was paid 
into Court in a suit and not under the Act, Malins, V.-C, declined to follow Re 
Marner {Scrivener v. Smith, 8 Eq. 310 ; and see Zonguet v. Sockley, 1% L. T. 198) ; 
and where an annuity was given free of duty, the costs of a petition for payment 
thereof were given out of the surplus of the fund {Re Apthorpe, W. N. (1869), 64). 
The earlier cases were conflicting. 

As to the amount of costs allowed on a petition for payment out, see Gover v. 
Stilwell, 21 Beav. 182. The costs of two petitions bond fide separately prepared by 
different parties entitled to petition will generally be allowed ; sccus, where the second 
petition is prepared with knowledge of the first (Re Chaplin, 33 L. J. Ch. 183 : 3 
N. R.289). 

Persons served with the petition or summons appear at the risk of costs, and if 
unsuccessful, wiU not generally be allowed them [Re Farry, 12 Jur. 615 ; Re Tyler, 

2 Jut. N. S. 927 ; Re Birch, 2 K. & J. 369 ; Re Insole, 14 W. R. 160 ; Re Wilson, 
ibid. 161). 

An unsuccessful claimant may, under special circumstances, be allowed his costs 
{Re Birch; Re Dickson, 1 Sim. N. S. 34). 

A respondent whose unsuccessful claim was the cause of the payment into Court, 
wiU be ordered to pay the costs of the application for payment out {Re Armston, 4 
De G. J. & Sm. 454 ; 10 Jur. N. S. 716). 

As to costs of unnecessary services, see post, p. 69, 

(i) These words of course do not mean that a trustee can by paying trust monies 
into Court discharge himself from liability for past breaches of trust in respect of 
those monies (Att.-Gen. v. Alford, 2 Sm. & Giff. 488 ; 4 De G. M. & G. 843 ; 1 Jur. 
K. S. 361 ; Re Fagg, 19 L. J. Ch. 175 ; Re Waring, 21 L. J. Ch. 783) ; nor from 
liability to pay in more if more is due {Goode v. West, 9 Ha. 378 ; Mitchell v. Cobb, 
17 L. T. (0. S.) 25 ; Re Jephson, 1 L.'T. 6) ; but the payment into Court is so far a 
discharge as to the monies paid in, that the remedy of the cestuis que trust in respect 
of any breach of trust as to such monies, or if they wish to deduct the costs retained 
by the trustee on payment in, is by action only; see Re Wright, 3 K. & J. 419, 422 ; 
Re Jenkins, 10 Jur. N. S. 332. 

The trustee, by payment into Court, discharges himself from the future adminis- 
tration of, and control over, the trust fund paid in {Re Coe, 4 K. & J. 199 ; ife Wright, 

3 K. & J. 421 ; Re Tegg, 15 W. R. 62 ; W. N. (1866), 317) ; and the Court undertakes 
such administration in his place, so that when a trustee had paid money into Court 
a new trustee was allowed to be appointed in his stead, he being considered as 
desirous of being discharged {Re Williams, 4 K. & J. 87 ; Re Bailey, 3 W. R. 31). 

But he is still trustee of the fund, at any rate untU the Court deals with the fund, 
for the purpose of receiving notices as to incumbrances, &o. {Thompson v. Tomkins, 2 
Dr. & Sm. 8 ; 8 Jur. N. S. 185) ; and he cannot get a fuU discharge except by 
proceeding to have his accounts taken {Barker v. Peile, 2 Dr. & Sm. 340 ; 11 Jur. 
N. S. 436) ; nor by bringing the fund into Court does he necessarily abandon 
a discretionary power as to its apphoation {Re Landon, 40 L. J. Ch. 370). 

Payment into Court of a fund belonging to an infant, constitutes the infant a ward 
of Court {Re Eodges, 3 K. & J. 213 ; 3 Jur. N. S. 860 ; Re Tweedale, Johns. 109 ; Re 
Binand, 16 W. R. 638). 



TEITSTEE EELIEF ACT, 1847. 57 

n. And be it enacted, that such orders as shall seem fit shall be 10 & 1 1 Vict. 

from time to time made by the High Court of Chancery in respect of °- ^^' °- ^- 

the trust monies, stocks, or securities so paid in, transferred, and Court to make 

deposited as aforesaid, and for the investment (A) and payment of any "etMon'Vith 

such monies, or of any dividends or interest on any such stocks or out suit) for 

securities, and for the transfer and delivery out of anv such stocks and fPP^oation of 

. . J J! i-L 1 . . . „ trust monies 

securities, and tor the administration of any such trusts (l) generally, and adminis- 

upon a petition (w) to be presented in a summary way to the Lord ^^^*^°^ °^ 

Chancellor or the Master of the Eolls, without bill, by such party or 

I)arties (n) as to the Court shall appear to be competent and necessary 

in that behalf, and service of such petition shall be made upon such 

person or persons as the Court shall see fit and direct (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 (p) 

in the same manner as if the same had been made in a suit regularly 

instituted in the Court ; and if it shall appear that any such trust funds 

cannot be safely distributed without the institution of one or more suit 

or suits, the Lord Chancellor or Master of the EoUs may direct any 

such suit or suits to be institufed (y). 

{k) As to Investment of funds lodged in. Court under the Act, see Supreme Investment. 
Court Funds Eules, 1884, r. 74, infra, p. 234. 

(i) The Court undertakes the control over, and administration of the fund paid in, Administra- 
in place of the trustee, see note (»), supra. tion of fund. 

Where monies belouging to a person of unsound mind, not so found by inquisi- Jurisdiction 
tion, are in Court tmder the Act, the High Court may in the exercise of its ordi- oyer funds of 
nary jurisdiction entertain applications for payment out of such monies for his lunatics and 
support (iJe Macfarlane, 2 J. & H. 673 ; 8 Jur. N. S. 208 ; Ee Dodaworth, 10 Ha. persons of uu- 
16 ; Se Law, 30 L. J. Ch. 512; 7 Jur. N. S. 410 ; Se Berry, 13 Bear. 455; JRe sound mind 
Upftai, 3 M. & G. 281 ; Se Farker, 2 W. E. 139 ; Se Ward, ibid. 406 ; Jle Drewery, 
ibid. 436 ; Re Buckley, Johns. 700 ; Be Sturge, 5 Jur. N. S. 423 ; Be PJielps, 28 
li. T. 350; Be Gamier, 13 Eq. 532 ; Be Perry, 23 "W. R. 335 ; W. N. (1875), 17 ; 
Re Whitley, W. N. (1877), 208) ; see however. Re Burke, i De G. F. & J. 124 ; 
6 Jur. N. S. 717. 

Where the fund belongs to a person who has been found lunatic the applica- 
tion should be made in Chancery under the Act and in Lunacy, and the Lords 
Justices can then make an immediate order for the transfer of the fund to the 
account of the lunatic {Be Tate, 20 Ch. D. 135). 

The Court has the same jurisdiction upon a petition as in an action ; and where Jurisdiction 
cross petitions are presented by the adverse claimants (which however in practice to decide 
is seldom done), or where, by consent, the case is treated as if such cross petitions questions as 
had been presented, the Court has ftdl power to declare the validity or invalidity in a suit • 
of any deed on which the claim is rested [Be Bloye, 1 M. & G. 488 ; S. G. nam, 
lewis V. Eillman, 3 H. L. C. 607). 

Thus, it has been held that, when money is paid in under the Act, the Court e, «. questions 
has jurisdiction to decide all questions arising concerning it, just as well as in a 
suit, and may, if it thinks fit, direct an issue to try the sanity of a testator, or for 
any other similar purpose (Be Allen, Kay, App. 51) ; and make a binding declara- 
tion of right [Re Walker, 16 Jur. 1154; Re Morgan, 2 W. E. 439; but see 
Sliarshau) v. Gibbs, Kay, 333) ; and may, of course, decide as to the construction of 
a settlement {Re ballon, 1 De G. M. & G. 266 ; 16 Jur. 253) ; or give effect to a of married 
married woman's equity to a settlement, by ordering such settlement out of the woman's 
fund in Court, either on her petition [Re Disney, 2 Jur. N. S. 206), or on that of equity to 
another person {Re Cutler, 14 Beav. 220 ; Re Kincaid, 1 Drew. 326 ; Be Grove, 3 settlement, 
GiS. 575) ; and may even order payment to a person not petitioning {Be Woollard, 
18 Jur. 1012) ; and the mere fact that pedigrees, deaths, &o., have to be^proved, of pedigrees 
which in an action might be admitted, will be no ground for directing an action to &o. ' 

be instituted {Be Marris, 2 W. E. 442, following Goode v. West, 9 Hare, 378) ; and '' 
see Mx parte Barnard, 6 Ir. Ch. Eep. 133 (decided on the Irish Act, 11 & 12 Vict. 
0. 68), where it was doubted whether the Court had jurisdiction on a petition 
under the Act to decide a question of ' election, as to which point see Stroud v. of election, 



58 



TRUSTEE RELIEF ACT, 1847. 



10 & 11 Vict, 
c. 96, a. 2. 

of general ai 
ministration. 
But not to 
reform a deed, 

nor remedy a 

breach of 

trust, 

nor decide a 

question of 

adverse title. 



Stop order. 



Prospective 
order for 
payment of 
future instal- 
ments and 



Application 
by petition 
or summons. 



Where claim 
disputed. 

Form of 
petition. 



Who may 
petition. 



Persons not 
named in the 
affidavit. 



:N'orman, Kay, 313, 326. Where there are creditors or unascertained claims, an 
action may be necessary {Be Allen, Kay, App. 51) ; but compare Smhey v. Mcrley, 
4 Jur. N. S. 234 ; Re Trower, 1 L. T. 64, where money paid in was ordered to be 
distributed as in an administration suit, proper inquiries being directed ; and He 
Gombault, W. N. (1868), 243. As to a general administration being made neces- 
sary by generality in the title of the affidavit, see note (rf), supra. It was held 
that a deed could not be reformed or its validity impeached on petition under the 
Act [Re Malet, 30 Beav. 407 ; 8 Jur. N. S. 226 ; 10 W. R. 332, overruling Re Morse, 
21 Beav. 174 ; Re Way (0. A.), 2 De a. J. & S. 365 ; 10 Jur. N. S. 1166) ; but in 
Re Soare, 4 GifP. 254, the Court was held to have such jurisdiction ; and in Re He 
La Touche, 10 Eq. 603, an order for payment out was made, prefaced by a decla- 
ration amounting to rectification of a patent error in a settlement ; and see Lewis v. 
mUman, 3 H. L. C. 607 ; Re Bird, 3 Ch. D. 214. It was held that a breach of 
trust could not be remedied (Re Lloyd, 2 W. E. 271) ; and that if a question of 
adverse title had to be decided, a suit should be directed {Re Fozard, 24 L. J. 
Ch. 441) ; and leave was given to the oestuis que trust to file a bill to have their 
rights declared {Thorp v. Thorp, 1 K. & J. 438 ; and see Re Sharpe, 15 Sim. 470). 

At the hearing of the petition it may be adjourned into Chambers, and an 
order upon it made there {Re Moate, 22 Ch. D. 636). 

The fund in Court may be ordered to be paid out to new trustees to be appointed 
by the order for payment out {Re Tubb, W. N. (1872), 73). 

Where a fund is paid in tmder the Act, an assignee should obtain a stop order 
{Re Millar, 6 W. R. 238 ; Re Blunt, 10 W. R. 379). 

Though the jurisdiction of the Court is properly confined to the trust money 
already paid in {Re Kodgson, 18 Jur. 786), yet a trustee who had paid a part of the 
trust fund into Court, was ordered, on the petition of the cestui que trust, whose 
title was clear, to pay to him the future instalments of the fund as they were 
received {Re Wright, 1 Sm. & C App. v.). And, in a later case. Lord Romilly, 
M. R., made a prospective order for payment by the Acoountant-General to a 
tenant for life of the income of any future fund paid to the same account {Re 
Chamberlain, 22 Beav. 286, and note to the case ; Re Thornton, 9 W. R. 476). So 
an order may be made for payment of dividends to successive tenants for life {Re 
Sow, 15 Jur. 266) ; and in Re Brent, 8 W. R. 270, an order was made for payment 
of the dividends of a fund in Court to one tenant for life, and on proof of his 
death to a second tenant for life, without further order. 

(ot) The applica,tion must be by petition {Felling v. Goddard, 9 Ch. D. 185 ; Re 
Masselin, 15 Jur. 1073 ; Ex parte Stock, 5 Ir. Ch. Rep. 341) ; except where the 
trust fund does not exceed 1,000^. or 1,000?. nominal value, in which case it must be 
by summons in chambers (R. S. C. 1883, Ord. LV. r. 2 (5), infra). When, how- 
ever, an order has been made on petition, further proceedings upon it may be 
taken by summons in chambers {Re Sodges, 4 De G. M. & G. 491 ; 1 Jur. N. S. 73 ; 
Re Tracey, I. R. 6 Eq. 271 ; and see Ord. LV. r. 2 (1, 2, 3)). And when before the 
institution of an administration suit the trustees had paid in part of the money 
under the Act, a. petition for payment out was dispensed with, the order for pay- 
ment out being entitled in the matter of the Act {Dixon v. Morley, W. N. (1869), 

Where the claim is disputed, cross petitions may be presented {Lewis v. HUhnan, 
3 H. L. C. 607) ; but in practice this is seldom done, as the Court has jurisdiction 
to order payment to a respondent (iJe Woollard, 18 Jur. 1012). 

The prayer of the petition and notice thereof should specify the exact order 
sought for, and the precise portions of the fund which aie to be transferred to the 
several parties entitled to it {Bx parte Barnard, 6 Ir. Ch. Rep. 133, under the Irish 
Act, 11 & 12 "Vict. 0. 68, the provisions of which are similar to those of this Act). 
Where one of several persons interested appUea, the petition should ask that the 
shares of the other persons may be carried to separate accounts {Re Sawkea, 18 Jur. 
33 ; see Sandley v. Metcalfe, 9 Beav. 495 ; Re Tillstone, 9 Hare, App. Kx.). The 
petition should set out the effect of the aifiBdavit upon which the money is paid in 
{Re Levett, 5 De G. & Sm. 619 ; Re Flack, 10 Hare, App. xxx.), but it need not, 
except in special cases, set out the whole affidavit {Re Courtois, 10 Hare. Ann. Ixv. : 
17 Jur. 862). > i-f > 

_ As to who may apply, see rule 6 of Chancery Funds Amended Orders, p. 53, 
ante. The trustees are not the proper persons to present the petition, though the 
Court (see Re Trower, 1 L. T. 64) wiU make the, order on their petition {Re Hutchin- 
son, 1 Dr. & Sm. 27, where V.-C. Endersley, following the decision in Re Cameau, 
2 K. & J. 249, allowed the trustees only respondents' costs, and gave the carriage 
of the order to the cestuis que trust) ; and see also Re Poplar School, 8 Ch. D. 543 ; 
and the request of one of the cestuis que trust that they should present the petition 
is not sufficient to justify them in doing so. 

A person not mentioned in the trustee's affidavit may apply {Re Pattrelk 7 Ch D 
647, not foUowing Re Jephson, 1 L. T. 5). ' ' 



TEUSTEE RELIEF ACT, 1847. 59 

On the application of an infant domiciled in Scotland (who was above the age of 10 & 11 Vict. 
puberty), and her curator properly appointed, a fund which had been brought into c. 96, s. 2. 
Court under this Act was ordered to be transferred into the ioint names of the 



infant and her curator (JJe Crichion, 24 L. T. (O. S.) 267). Infant and 

In £e Gamier, 13 Eq. 532, the Court declined to pay out the fund to a mmtor curator. 

bonis appointed by a foreign Court, but directed the income only to be paid to him. 

The petition must be supported by proper evidence of the title of the applicant. Evidence and 

and, if necessary, inquiries will be directed [He Wood, 15 Sim. 469 ; Be Sharpe, ibid, inquiries. 

470; Se JBarber, 1 Sm. & G. 118; Se Morgan, 2 W. E. 439). And a person 

making an affidavit may be cross-examined {Se Bendyshe, 5 W. B. 816). As to 

trustees taking copies of the affidavits, see Se Lazarus, 3 K. & J. 555. 

(«) A petitioner may apply in formA pauperis {Se Money, 13 Beav. 109 ; and see 

Se Lancaster, 18 Jur. 229). 

(0) The following rule as to service is laid down by rules 7 and 8 of the Chancery Service and 
Eunds Amended Orders, p. 53, ante : — (1), the trustees are to be served with notice costs of ap- 
of applications by persons interested in the fund ; (2), the persons interested are to pearanco— 
be served with notice of applications by the trustees. 

(1) Trustees, &o., paying money into Court, have their costs of appearing as of trustees; 
respondents to a petition for a stop order {Se Blunt, 10 W. R. 379) or (except in 

cases of vexatious conduct or needless appearance) to a petition for payment out ; 
see note (A), ante ; but where the title of a tenant for life petitioning for income is 
clear, the trustees ought not to appear {Se Evans, 7 Ch. 609 ; Se Battell, 21 W. E. 
138 ; and see E. S. G. 1883, Ord. LXV. r. 27 (19), infra). 

A petition for payment to a lunatic's executors of money paid in by the committee 
was ordered to be served on the committee though he had passed his accounts (Se 
Wylde, 5 De G. M. & G. 25). 

Where a trustee avoided serviee, the order was made upon service at the place 
mentioned in his affidavit {Ex parte Baugham, 16 Jur. 325 ; but see Se Lawrence, 14 
"W. E. 93) . Service on a trustee may be dispensed with in a clear case {Be Young, 

5 W. E. 400 ; Se Beauelerk, 11 W. E. 203 ; Se Thomas, ibid. 276) ; and where the 
house named by trustees for service was pulled down, and the trustees had not been 
heard of for ten years, service of the petition on them was dispensed with, and an 
inquiry was directed to ascertain who were entitled to the fund {Be Bolton, 18 W. E. 
56 ; "W. N. (1869), 226). 

(2) As to dispensing with service on the ground that the party to be served is of cestuis que 
abroad and cannot be heard of, see Be Sansfard, 7 W. E. 199, cited p. 63, ante; trust; 

Se Jfaylor, 28 L. T. 18. Where inqiiiries had been directed at the original hearing, 
and it appeared that persons not parties to the proceedings were interested, the 
Court ordered that the petition, the order made thereon, the chief clerk's certificate 
and the order for service, should be served on the persons named in the certificate, 
and that the petition should stand over till sudi service had been effected {Se 
Battersby, 10 Ch. D. 228). Parties served, who claim no interest, should not appear, 
and if they do, will get no costs {Be Smith, 3 Jur. N. S. 659 ; Se Birch, 2 K. & J. 
369 ; Se Justices of Coventry, 19 Beav. 158 ; but see Ex parte Queen's College, 

6 W. E. 9 ; Sudge v. Weedon, 11 W. E. 819). A fortiori, incumbrancers appearing 
on a petition by a prior incumbrancer, whose debt exhausted the fund in Court, in 
spite of a notice by the petitioner's solicitor that if they appeared the payment of 
their costs would be resisted, were held disentitled to costs {Boberts v. Ball, 24 L. J. 
Ch. 471). 

Where a tenant for life petitions for payment of income, remaiildeimen need not on petition 
be served {Be Whitling, 9 W. E. 830 ; S. C. nmn. Be Whiting, 7 Jur. N. S. 754 ; Be by tenant 
Marner, 3 Eq. 432) ; and the trustees need not appear {Be Evans, 7 Ch. 609 ; Be Battell, for hfe ; 
21 W. E. 138 ; and see E. S. C. 1883, Ord. LXV. r. 27 (19), infra). So on a petition 
that the dividends might be paid to several tenants for life, and the several shares 
of the corpus carried over to the accounts of numerous remaindermen {Be Hodges, 
6 W. E. 487 ; and see Ex parte Fletcher, 12 Jur. 619 ; Strong v. Strong, 6 W. E. 455) ; 
and in such cases leave may be given to serve some of the parties interested on 
behalf of the class {Be Oolson, 2 W. E. 111). 

Where a fund has been carried over to a separate account, the parties interested of persons 
in the other shares need not be served {Be Sodgson, 2 Eq. E. 1083 ; Se Savikes, interested in 
18 Jur. 33) ; so a mortgaged share of funds paid into Court under the Act, may be other shares ; 
paid to parties clearly entitled, in the absence of the parties interested in the other 
shares {Se Beford, 21 L. T. (0. S.) 164). 

A married woman, having a power of appointment over a reversionary trust fund, of persons 
appointed it by way of mortgage, with a power of sale, under which it was after- who may 
warda sold. Her husband became bankrupt, and, after the determination of the claim ad- 
life estate, the trustees paid the fund into Court under this Act. The purchasers versely. 
thereupon presented a petition for a transfer of the fund to them, which was served 
upon the trustees only. The Court made the order, subject to a direction that it 
should not be drawn up for a fortnight, and that the husband's assignees should be 



60 



TRUSTEE KELiEE ACT, 184?. 



10 & llViot. 
c. 96, s. 2. 

Parties 

residing 

abroad. 

Substituted 

service. 



Lord Chan- 
cellor, -with 
Master of the 
KoUs, &c., 
may make 
G-eneral 
Orders. 

Construction 
of expression. 
"Lord Chan- 
cellor." 



served with notice that the fund would be paid out if no objections were taken (-Ec 
parte Stutely, 1 De G. & Sm. 703). 

On a reasonable application, in writing, by parties residing abroad, and served 
with notice of a petition under the Act, lie Court may postpone the order for pay- 
ment out of Court {Re Hodgson's Will, 22 L. J. Ch. 1055). 

Substituted service of the petition (Be Sonelli, 18 Eq. 655), or service out of the 
jurisdiction (Re Haney, 10 Ch. 275; Re Sonelli; Re Fisher, W. N. (1881), 137; 30 
W. E. 57 ; Re Morant, W. N. (1879), 144), may be ordered. 

(p) As to the time for appealing from an order made under the Act, see Re 
BailUe, 4 Ch. D. 785, ante, p. 51. 

(q) See Re Fosard, and other cases, p. 58, supra, as to directing an action. The 
direction is now given by a judge of the Chancery Division. 

[Sect. III., regulating salary of Acoountant-General, is repealed by the Chancery 
Funds Act, 35 & 36 Vict. o. 44, post."] 

rV. And be it enacted, that the Lord Chancellor, with the assistance 
of the Master of the Eolls, or of one of the Vice-Chancellors, shall have 
power, and is hereby authorised, to make such orders as from time to 
time shall seem necessary for better carrying the provisions of this 
Act into effect. 

V. And be it enacted, that in the construction of this Act, the ex- 
pression "the Lord Chancellor" shall mean and include the Lord 
Chancellor, Lord Keeper, and Lords Commissioners for the custody of 
the Great Seal of Great Britain for the time being. 



12 & 13 Vict. 
o. 74. 



TEUSTEB BELIEF ACT, 1849. 

12 & 13 VICT. Cap. 74. 

An Act for the further Belief of Trustees. 

[28th July, 1849.] 

Whereas difficulties have arisen in the transfer of securities vested 
in trustees in certain cases under the provisions of an Act passed in the 
session of Parliament holden in the 10th and 11th years of the reign 
of her present Majesty, intituled "An Act for better securing trust 
funds, and for the relief of trustees," and it is expedient to make a 
further provision for carrying into effect the objects of the said recited 
Act : be it therefore enacted by the Queen's most excellent Majesty, 
by and with the advice and consent of the Lords Spiritual and 
Temporal, and Commons, in this present Parliament assembled, and 
by the authority of the same, that if upon any petition presented 
to the Lord Chancellor or Master of the HoUs (o) in the matter of the 
said Act it shall appear to the judge of the Court of Chancery before 
whom such petition shall be heard that any monies, annuities, stocks, 
or securities (&), are vested in any persons as trustees, executors, or 
administrators, or otherwise upon trusts within the meaning of the 
said recited Act, and that the major part of such persons (c) are 



TRUSTEE EELIEF ACT, 1849. 61 

desirous of transferring, paying, or delivering the same to the Accountant- 12 & 13 Viot. 
General of the High Court of Chancery under the provisions of the "" ' 



said recited Act, but that for any reason the concurrence of the other or Court may, 
others of them cannot he had (d), it shall he lawful for such judge as cation by- 
aforesaid to order and direct such transfer, payment or delivery to be majority of 
made by the major part of such persons without the concurrence of the order pay- ' 
other or others of them; and where any such monies or Government mentor 
or Parliamentary securities shall be deposited with any banter, broker, t^ugt monies, 
or other depositary, it shall be lawful for such judge as aforesaid to stocks, or 
make such order for the payment or delivery of such monies. Govern- j^^q Court, 
ment or Parliamentary securities, to the major part of such trustees, 
executors, administrators, or other persons as aforesaid, for the purpose 
of being paid or delivered to the said Accountant-General as to the said 
judge shall seem meet ; and every transfer of any annuities, stocks, or 
securities, and every payment of money, or delivery of securities, in 
pursuance of any such order, shall be as valid and effectual as if the 
same had been made on the authority or by the act of aU the persons 
entitled to the annuities, stocks, or securities so -transferred, or the 
monies or securities so paid or delivered respectively, and shall fuUy 
protect and indemnify the Governor and Company of the Bank of 
England, the East India Company, and the South Sea Company, and 
all pther persons acting under or in pursuance of such order. 

(a) The application is now made to a judge of the Chancery Division. 

(4) Ordinary, debenture and preference stock of a railway company, and India 
4 per Cent. Stock, may be directed to be transferred into Court under the Act ; see 
Re Ferry, W. N. (1874), 61 ; 22 W. R. 432 ; Se GUdstanes, W. N. (1878), 26 ; Ee 
Moss, 28 W. R. 418. ... 

(«) Where one of three trustees was ill the order was made on the petition of the 
other two {Me Broadwood, 8 1.. T. 632 ; and see Re Perry ; Re GUdstanes). 

(d) A trustee who does not concur should be served with the petition (Re Bryant, 
W. N. (1868), 123). 



TEUSTEE ACT, 1850. is & 14 Vict. 

c. 60. 



13 & 14 VICT. Cap. 60. 



An Act to consolidate and amend the Laws relating to the Conveyance 
and Transfer of Real and Personal Fropertij vested in Mort- 
gagees and Trustees (a). [5th August, 1850.J 

{a\ For the scope of the Act, see Bristow v. Bmtli,, L. R. 5 C. P. 80, 91. 

It Tirovides for eetting in the legal estate of Und where trustees or mortgagees Provisions i 
are linatic (ISoofss. Z, i, pp. 64, 66), or infant (ss. 7, 8, pp. 67, 68), or trustees to Und. 
or heirs of mortgagees are out of jurisdiction, or survivor uncertain, or they or their 
heiTlare no^knS,,^ (sa. 9-15, 19, pp. 68-70), or refuse to convey (1852, ss. 2, 3, 

"where there is a contingent right in an unborn trustee (1850, s. 16, p. 70) ; 



62 



TRUSTEE ACT, 1860. 



13 & U Vict 
0. 60. 

Copyhold or 
Duchy lands. 
Stoclc. 

Bank of Eng- 
land. 
Glioses in 
action. 
Charity. 
Appointment 
of new 
trustees. 
Of persons to 
convey. 
Money pay- 
able to infants 
or lunatics. 
Conveyancing 
Act, 1881. 



Interpreta- 
tion of terms. 



"Lands." 



<i RfnnV " 



' Stock, 



"Seised." 



" Contingent 
right." 



" Convey." 

"Convey- 
ance." 



Where the lands are copyhold (1850, b. 28, p. 76), or in the Duchy of Lancaster 
or Durham (1850, s. 21, p. 72) ; 

And for vesting orders of stock where trustees or mortgagees, or personal repre- 
sentatives are lunatic (1850, ss. 5, 6, pp. 66, 57 ; 1852, s. 6, p. 92), infant (1862, 
B. 3, p. 91), out of jurisdiction, or uncertain, or not known (1850, ss. 22, 25, pp. 
73, 75), or refuse to assign (1850, ss. 23, 24, pp. 73, 74 ; 1852, ss. 4, 5, p. 91) ; 

The bankers or companies are to be bound, see 1850, s. 26, p. 75. 

And for vesting orders of clioses in action where trustees, or mortgagees, or per- 
sonal representatives are lunatic (1850, s. 6, p. 66), or out of jurisdiction (1850, 
s. 22, p. 73), or refuse to sue (1850, ss. 23, 24, pp. 73, 74 ; 1862, s. 4, p. 91) ; 

Eor the effect of such orders, see 1850, s. 27, p. 75. 

Ordiersas to trustees of charities are provided for, 1850, s. 45, p. 86 ; 

It provides for appointment of new trustees on petition, and the consequent con- 
veyances and transfers, 1850, ss. 32 — 42, pp. 79 — 84 ; 

Por appointment of a person to convey or transfer if desirable, 1850, s. 20, p. 71 ; 

And for declaration that persons against whom a decree is made are trustees, 
1850, ss. 29, 30, pp. 76, 77 ; 1852, s. 1, p. 90. 

Money payable to infants or lunatics may be paid into Court under the Act of 
1850, s. 48, p. 86. 

By s. 30 of the Conveyancing Act, 1881, trust and mortgage estates on a death 
after Deo. 31, 1881, vest in the legal personal representative of the deceased trustee 
or mortgagee ; see the section and note thereto, infra. 

[Sect. 1, repealing 11 Geo. 4 & 1 Will. 4, c. 60 ; 4 & 5 WiU. 4, c. 23 ; 1 & 2 Viot. 
u. 69, was repealed by Stat. Law Revision Act, 1875.] 

U. And whereas it is expedient to define the meaning in which 
certain words are hereafter used : it is declared that the several words 
hereinafter named are herein used and applied in the manner follow- 
ing respectively (that is to say) — 

The word " lands " shaU extend, to and include manors, messuages, 
tenements, and hereditaments, corporeal and incorporeal, of every 
tenure or description, whatever may be the estate or interest 
therein (i) : 

The word " stock " (c) shall mean any fund, annuity, or security 
transferable in books kept by any company or society established 
or to be established, or transferable by deed alone, or by deed 
accompanied by other formaHties, and any share or interest 
therein : 

The word " seised " {d) shall be applicable to any vested estate for 
life or of a greater description, and shall extend to estates at law 
and in eq^uity, in possession or in futurity, in any lands : 

The word " possessed" shall be applicable to any vested estate less 
than a life estate, at law or in eq[uity in possession or in ex- 
pectancy, in any lands : 

The words " contingent right," as applied to lands, shall mean a 
contingent and executory interest, a possibility coupled with an 
interest, whether the object of the gift or limitation of such 
interest or possibility be or be not ascertained ; also a right of 
entry, whether immediate or future, and whether vested or con- 
tingent : 

The words "convey" and "conveyance" applied to any person 
shall mean the execution {dd ) by siieh person of every necessary 
or suitable assurance for conveying or disposing to another lands 
whereof such person is seised or entitled to a contingent right, 
either for the whole estate of the . person conveying or disposing 



TRUSTEE ACT, 1850. g3 

or for any less estate, together with the performance of all 13 & 14 Vict. 

formalities required by law to the validity of such conveyance, "• ^°' ^- ^- 

including the acts to be performed by married women and tenants 

in tail in accordance with the provisions of an Act passed in the 

fourth year of the reign of his late Majesty King William the 

Fourth, intituled "An Act for the abolition of fines and re- 3&4Wm.4, 

coveries, and the substitution of more simple modes of assurance," "• ^*- 

and including also surrenders and other acts which a tenant of 

customary or copyhold lands can himself perform preparatory to 

or in aid of a complete assurance of such customary or copyhold 

land: 

The words " assign" and "assignment" shall mean the execution "Assign." 
and performance by a person of every necessary or suitable deed "Assign- 
or act for assigning, surrendering, or otherwise transferring lands 
of which such person is possessed, either for the whole estate of 
the person so possessed or for any less estate : 

The word " transfer " shall mean the execution and performance of " Transfer." 
every deed and act by which a person entitled to stock can transfer 
such stock from himself to another : 

The words "Lord Chancellor" shall mean as well the Lord Chancellor "Lord 
of Great Britain as any Lord Keeper or Lords Commissioners of Chancellor." 
the Grreat Seal for the time being : 

The words "Lord Chancellor of L-eland" shaU mean as well the "Lord 
Lord Chancellor of Ireland as any Keeper or Lords Commissioners of t'Iu a " 
of the Great Seal of teland for the time being : 

The word "trust" shall not mean the duties incident to an estate "Trust." 
conveyed by way of mortgage (e) ; but, with this exception, the 
words "trust" and " trustee "(/) shall extend to and include "Trustee." 
implied and constructive trusts (^), and shall extend to and in- 
clude eases where the trustee has some beneficial estate or interest 
in the subject of the trust (A), and shall extend to and include the 
duties incident to the office of personal representative of a deceased 
person («) : 

The word "lunatic" shaU mean, any person who shall have been "Lunatic." 
found to be a lunatic upon a commission of iuquiry in the nature 
of a writ De lunatico iuquirendo {j ) : 

The expression "person of unsound mind" shall mean any person, "Person of 
not an infant, who, not having been found to be a lunatic, shall mina!'' 
be incapable from infirmity of mind to manage his own 
affairs : 
The word "devisee" shall, in addition to its ordinary signification, "Devisee." 
mean the heir of a devisee and the devisee of an heir, and gene- 
rally any person claiming an interest in the lands of a deceased 
person, not as heir of such deceased person, but by a title de- 
pendent solely upon the operation of the laws concerning devise 
and descent : 
The word "mortgage" shaU be applicable to every estate, interest, "Mortgage." 



64 



TRUSTEE ACT, 1850. 



13 & 14 "Viot. 
0. 60, H. 2. 

"Person." 



Number and 
gender. 



"Lands." 



" Stock." 



Mortgagee 
not trustee 
within Act. 



Who is 
trustee. 
Husband. 

Executrix. 
Heir. 



Heir of 
mortgagee. 



i in 
bankruptcy. 

Trustee for 
sale. 

Dower 
trustee. 

Vendors and 
mortgagors. 
Constructive 
trustees. 
Personal 
representa- 
tive. 
Lunatic. 
Mortgage. 
Crown Estates 
Act, 1862. 
Zunatic 
trustees and 



or property in lands or personal estate, wWch. would in a Court of 
Eq[uity be deemed merely a security for money (A) : 

The word "person," used and referred to in the masculine gender, 
shall include a female as well as a male, and shall include a body 
corporate (l) : 

And generally, unless the contrary shall appear from the context, 
every word importing the singular number only shall extend to 
several persons or things (k), and every word importing the plural 
number shall apply to one person or thing, and every word im- 
porting the masculine gender only shall extend to a female. 

(S) As to "lands" including "rent-charge," Bee Se JBCarrison, cited Seton, 516. 

" Lands " do not include leaseholds in sect. 15, where the word " seised" is used 
{Se Harvey, Seton, 520 ; Jie Mundel, 8 W. E. 683) ; but in JRe Mundel, a vesting 
order was made under sect. 34, in which section the word " lands " includes lease- 
holds {Ee Matthews, 2 W. E. 85 ; Ee Eoiinson, 11 W. R. 1036). 

(c) The word "stock" includes shares in a joint stock banking company {Re 
Angela, 5 De G-. & S. 278; and see Morrice v. Aylmer, 10 Ch. 148), and shares in 
ships registered under the- Merchant Shipping Act, 1854 (18 & 19 Viot. o. 91, 
B. 10). 

(d) See Se Mundel. 

(dd) The Act applies where a person has been directed to execute a lease, and 
has refused to do so {Sail v. Sale, "W. N. (1884), 185 ; but see Grace v. Baynton, 
W. N. (1877), 79 ; 25 "W. R. 506). 

(e) Therefore a mortgagor cannot obtain an order for reconveyance or sale under 
the Act, without suit, under sections which relate only to trustees, e. g., sect. 9, 
and see note {g) to sect. 30; Ee Osborn, 12 Eq. 392. Secus, where land was con- 
veyed, not strictly by way of mortgage, but by way of trust for sale in default of 
payment of money borrowed ; see Ee Underwood, 3 £. & J. 745 ; or where the 
mortgagee has become a trustee {Re Crowe, 13 Eq. 26 ; Ee Walker, 3 Ch. D. 209)'. 

(/) The following persons have been held to be trustees within the Act : — 

The husband of a feme covert trustee (under sect. 6), Ee Wood, 3 De G-. E. & J. 
125 ; and of an executrix- (under sect. 22), £x parte JSradshaw, 2 De Gr. M. & Gr. 
900. See now Vendor and Purchaser Act, s. 6, post, p. 107 ; Married Women's 
Property Act, 1882, s. 18, post, p. 199. 

The executrix of a surviving trustee (under sect. 4 of the Extension Act), Ee 
mis, 24 Beav. 426. 

A surviving executor (not a trustee) who died intestate, Et Mavis, 12 Eq. 214. 

An heir on whom trust estates descended by reason of the disclaimer of devisees 
in trust (under sect. 9), Wilfcs v. Groom, 6 De Gr. M. & Gr. 205 ; Sooper v. St}-ution, 
12 W. R. 367. 

The heir-at-law of a deceased mortgagee (under sects. 9 and 15), in cases not 
within the 19th section {Se Skitter, 4 W. R. 791 ; Se , Underwood, 3 K. & J. 745 ; 
Ee Keeler, 11 W. R. 62. See now Conveyancing Act, 1881, b. 30, post, p. 116). 

An assignee of a bankrupt (under sect. 9), Ee Joyce, 2 Eq. 576. 

As to the Act applying to a trustee with a mere power of sale, see note {p), 
p. 65, on vesting orders. 

As to a mere dower trustee being a trustee within the Act, see Collard v. Eoe, 4 
De Gr. & J. 525, whence it seems that his interest might have been bound by a 
decree without any order under this Act. 

{g) On the question whether a suit for specific performance, foreclosure, &o., is 
necessary before a mortgagor, or contracting party can be declared a constructiTe 
trustee, see note {g) to sect. 30, post, p. 77. 

(A) This includes an infant beneficially entitled to a fund subject to trusts for 
maintenance {Gardner v. Cowles, 24 W. R. 920; 3 Ch. D. 304). 

(i) See Ee Moore, McAlpine v. Moore, 21 Ch. D. 778. 

W See now "The Lunacy Regulation Act, 1862," 25 & 26 Viot. <:. 86. 

{k) See Ee Undericood, 3 K. & J. 745 ; Lawrance v. Galsworthy, 3 Jur. N. S. 
1049 ; Ee King, 5 De G-. & Sm. 644 ; 16 Jur. 1153. 

{I) Extended by the Crown Private Estates Act, 1862 (25 & 26 Viot. c. 37), B. 10, 
to the trustees of the private estates of the Sovereign. 

III. And be it enacted, that when any lunatic or person of unsound 
mind (to) shall be seised (n) or possessed of any lands upon any trust 



TRUSTEE ACT, 1850. gg 

or by way of mortgage, it shall be lawful for tlie Lord Chancellor (o) 13 & 14 Vict. 
intrusted by virtue of the Queen's Sign Manual with the care of the °- ^°' °- ''• 
persons and estates of lunatics to make an order that such lands be mortgagees 
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 (j). 

(»i) When, the limaey is disputed the Act does not apply {Se Phillips, Cr. & Ph. Lunacy 
147) ; but a coiumission may be issued if the Court thinks fit ; see sect. 52, disputed. 
post, p. 88. 

Where an infant trustee is also of unsound mind, the case falls within the Where 
ordinary jurisdiction of the Court [Re Arrowsmith, 6 W. R. 642 ; 4 Jur. N. S. lunatic is 
1122). iijant. 

(n) The word " seised " includes an estabe in tail [JRe Sherard, 1 DeGr. J. & S. 421). g.- j 
(o) The words "the Lord Chancellor," with reference to the jurisdiction in lunacy, '^ 
included the L. JJ. (JSe Waugh, 2 De G. M. & G. 279 ; 15 & 16 Vict. c. 55, s. 11 ; Lord 
u. 87, s. 15). The jurisdiction in lunacy is now exercised by such judge or judges Chancellor, 
of the High Court or the Couft of Appeal as may be intrusted by the Sign Manual 
with the care of lunatics (Jud. Act, 1875, a. 7 ; and see Seton, 518). The Lords 
Justices have been appointed judges of the Chancery Division for the purpose of 
applications connected with lunacy [Ee Lamotte, 4 Ch. D. 325 ; Jud. Act, 1873, 
d. 51). 

Whenever the trustee or mortgagee is of unsound mind, but not found a lunatic. Application 
the application under these Acts may be made in Chancery if the fund is already when to be 
standing to the credit of a cause ; see note to sect. 43 ; Herring v. Clark, 4 Ch. 167 ; made in 
Sarrison v. Smith, 17 W. R. 646 ; and see Re Ferrior, 3 Ch. 178 ; but if no cause is lunacy. 
pending, the jurisdiction belongs not to the Chancery Division, but to the judges in 
lunacy, unless the trustee is also an infant [Re Arrowsmith), or is out of the juris- 
diction {Se Gardner, 10 Ch. D. 29) ; see Ee Good Intent Benefit Society, 2 W. R. 671 ; 
Re Davidson, 20 L. J. Ch. 644 ; Ee Chatmcey, 14 W. R. 849 ; and comp. Re Irby, 17 
Beav. 334, and the cases cited by Lord Justice Turner in Re Ormerod, 3 De G-. & 
J. 249, where it was held that the V.-C. of the Duchy of Lancaster had no power 
under the 17 & 18 Vict. c. 82, to appoint a new trustee in the place of a trustee of 
unsound mind, not found so by inquisiti'on ; see also Re Owen, 4 Ch. 782 ; Re Mason, 
10 Ch. 273 ; and sect. 10 of the Extension Act, post ; and as to appointing a new 
trustee in place of a lunatic, see note [l], p. 79, post. 

In Ee Tickers, 3 Ch. D. 112, it was held that a petition for the appointment of 
new trustees in the place of two deceased trustees and a trustee of unsound mind 
not so foQnd, no vesting order being required, might be made in Chancery. Where 
one of several trustees is a lunatic, and it is desired to appoint a new trustee in his 
place, the petition must be entitled in Chancery as weU as in lunacy ; otherwise the 
vesting order would sever the joint tenancy {Re Fearson, 5 Ch. D. 982 ; Ee Duee, 30 
W. R. 759). As to the mode of applying where a fund standing in the name of a 
lunatic trustee is desired to be transferred to the credit of a cause, see Re Dawson, 
6 N. R. 346, where Jeffryes v. Drysdale, 9 W. R. 428, is remarked upon. 

The order ought to be made in Chancery as well as lunacy in aU oases where it is 
desired to appoint a new trustee, as the power in lunacy is restricted to making a 
vesting order {Re Boyce, 4 De G. J. & S. 205 ; 12 W. R. 359), and in Re Stewart, 
8 W. R. 297, the Lords Justices, under one petition presented in Chancery and 
lunacy, appointed new trustees in the place of one trustee of unsound mind, not 
found so by inquisition, one resident abroad, and one who was dead. See further 
as to the exercise of the jurisdiction where the trustee is a lunatic and the lands are 
in Ireland {Re Lamotte, 4 Ch. D. 325). 
As to service on the committee, see note to sect. 40. Service on 

{p) Vesting orders may be made in pursuance of decrees, see s. 30, infra. committee. 

Vesting orders should contain some description of the property comprised in them Vestiso 
{Ee Ord, 3 W. R. 386). ,. „ . Oedebs op 

The Court will make orders vesting lands to " such uses as a person shall appomt, Xi^sn. 
gnd in default to such person in fee " {Ee Powell, 4 K. & J. 338, where the object ' 

was to save the expense of an acknowledgment by a feme covert, a mortgagee's '-^ ''^hat uses, 
executrix), or to uses in bar of dower {Ee Lush, 5 De G. & Sm. 436 ; Bavey v. To uses in 
Miller, 1 Sm. & G. App. xix. ; overruling Re Howard, 5 De G. & Sm. 436) ; but bar of dower, 
will not, it seems, insert in an order a declaration barring dower {Re Lush) ; see 
Seton, 519. 

M. I' 



66 



TRUSTEE ACT, 1850. 



13 & 14 Vict. 
0. 60, B. 3. 

Subject to 
legacy. 

Or other 
reserrations. 

Where no 
one has an 



estate. 

Equitable 
interest. 

Copyhold. 



Vestino 
Obdebs of 
Peesonaltt, 
though no 
one has an 
existing 
interest. 

How far 
order to bind 
Bank of 
England. 



Form of 
order. 

Directions as 
to transfer. 

Vesting in 
cestuis qm 
trust. 



rig/its of 
lunatic 
trustees and 
mortgagees 
of lands. 



An order was made to vest a legal estate outstanding in an infant mortgagee in 
the devisees of the mortgagor, subject to a legacy charged on the land by his 
will (JS« JSUerthorpe, 18 Jur. 666 ; see Be Winteringham's Trusts, 3 W. R. 578). 

A vesting order was discharged and a conveyance directed, under s. 21, for the 
purpose of expressing reservations as to mines in Turner v. Speakman, Seton, 534 ; 
see Langhbrn v. Langhorri, 21 L. J. Ch. 860. 

It was held that vesting orders of land under the Act could only be made where 
the person from whom the land was to be devested had a legal estate, and not 
where he had a mere power [Re Porter, 3 W. R. 583) ; but the order was subse- 
quently made in that case, see Seton, 519 ; and see Ite Boyee, i De Gr. J. & S. 
205 ; 12 W. R. 359 ; and compare Re Rathbone, 2 Ch. D. 483, cited infra, as to 
vesting orders of personalty where there is no legal personal representative. 

As to the propriety of a vesting order where the interest to be assigned is only 
equitable, see note (j), b. 30. 

As to vesting orders of copyholds, see note (d), s. 28. 

See s. 20, by which the Court may appoint a person to convey in certain cases 
instead of maMng a vesting order. 

A vesting order may be made under the Act, even though there is no incapacity 
in the person seised of the legal estate to execute a conveyance ; see Re Manning, 
Kay, App. xxviii. (under sect. 34) ; Saneox v. Spittle, 3 Sm. & G. 478. 

As to costs of applications for vesting orders, see note {k), a. 51. 

A vesting order of stock or other personalty can be made though the last trustee 
died intestate and had no personal representative, so that there is no existing 
interest to be vested (Re Rathbone, 2 Ch. D. 483 ; Re Mundel, 8 W. R. 683 ; Re Driver, 
19 Eq. 352 ; Re Dalgleish, 4 Ch. D. 143) ; and see Re Dixon, 21 W. R. 220 ; Re 
Crowe, 14 Ch. D. 610. 

The vesting order binds the Bank (ss. 20 and 26, and sect. 6 of the Extension Act, 
post) • but the Bank appealed successfully against an order vesting the right to 
transfer a fractional part of a dividend of stock, and the new trustees in that case 
were consequently enabled to receive the arrears of the dividends, and directed to 
retain only such part as was subject to the trust {Re Stewart, 8 W. R. 425). Nor 
will the Court generally vest the right to receive or transfer future dividends of 
stock in a person in whose name the stock is not standing ; see Re Bartnall, 5 De 
Qc. & Sm. Ill ; and even where an order was made (under sect. 22) vesting the 
right to receive "dividends now due or hereafter to accrue due," in three out of 
four trustees, one being out of the jurisdiction, this order was, on the appeal of 
the Bank, varied by limiting the right of the three trustees to receive the dividends 
to their joint lives [Re Peyton, 25 Beav. 317 ; 2 De Gr. & J. 290). 

In the case of an order to be acted upon by the Bank the circumstances bringing 
the case within the Act should be shown upon the order (Re Ellis, 24 Beav. 426 ; Re 
Mainwaring, 26 Beav. 172) ; see Seton, 514. 

The Camt maj give directions as to how the right to transfer is to be exercised, 
e, g., may direct it to be paid into Court under the Trustee Relief Act; see post, 
sect. 31, and note. 

The Court has vested the right to transfer stock, &c., in the cestuis que trust 
themselves under this section and sect. 24 combined ; see Re White, 5 Ch. 698. 

(q) An order under this section vesting lands vested in a lunatic trustee as tenant 
in tail will bar the estate tail, though the Eiues and Recoveries Act be not referred 
to (Re Mason, 7 Ch. D. 707). 

IV. And be it enacted, that when any lunatic or person of unsound 
mind shall be entitled to any contingent right (r) in any lands upon 
any trust or by way of mortgage, it shall be lawful for the Lord 
Chancellor (s), intrusted as aforesaid, to make an order wholly releas- 
ing 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 releasing or disposing of 
the contingent right. 



V) As to the definition of "contingent right" see sect. 2, ante, 
s) See note (o) to sect. 3, ante, p. 65. 



V. And be it enacted, that when any lunatic or person of unsound 



Stock and 

of'wi^"'"^ ^^^ ^^^^^ ^® ®°-^®V entitled to any stock or to any chose in action 



TRUSTEE ACT, 1850. 67 

Tipoii any trust or by way of mortgage, it shall be lawful for the Lotd 13 & 14 Vict. 
Chancellor intrusted as aforesaid {t) to make an order vesting in any "• ^°' °- ^- 
person or persons the right to transfer such stock, or to receive the trustees and 
dividends or income thereof, or to sue for and recover such chose in "o'^^&^iiSss. 
action, or any interest 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 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, either in such person or 
persons so jointly entitled as aforesaid, or in such last-mentioned 
person or persons together with any other person or persons the said 
Lord Chancellor may appoint (u). 

{() See note (o) to sect. 3, ante, p. 63. 

(m) See Se Stewart, 8 W. B. 297 ; Se Ohauncey, "W. N". (1866), 217 ; 14 W. R. 849. 
The order should not vest the stock in the persons beneficially entitled, except as 
trustees (Re Cmrie, 10 Ch. D. 93 ; and see Re Holland, 16 Ch. D. 672). 

The Court has jurisdiction under this section to make an order vesting the right 
to transfer the stock solely in the co-trustees, and the order may he made in, lunacy 
only [Re Watson, 19 Ch. D. 334, overruKng Re Nash, 16 Ch. D. 603). 

The husband of a married woman trustee was held to be a trustee wiihin the 
meaning of the Act, and an order made accordingly [Re Wood, 3 De G. F. & J. 125) ; 
see now Married "Women's Property Act, 1882, s. 18, infra. 

Where one of the executors of a person in whose name stock was standing became 
a lunatic, an order was made in lunacy vesting the right to call for a transfer, and 
to transfer the stock, in the other executors (Re Wacher, 22 Ch. D. 635 ; Re White, 
S Ch. 698). 

As to Irish railway stock standing in the name of a trustee who becomes of 
Tinsound mind, see Re Sodgson, 11 Ch. D. 888, cited in note to sect. 56, infra. 

VI. And be it enacted, that when any stock shall be standing in Steele of de- 
the name of any deceased person whose personal representative is a in^name^of°"^ 
lunatic or person of unsound mind, or when any chose in action shall lunatic per- 
be vested in any lunatic or person of unsound mind as the personal gentetive'^^" 
representative of a deceased person, it shall be lawful for the Lord 
Chancellor, intrusted as aforesaid, to make an order vesting the right 
to transfer such stock, or to receive the dividends or income thereof, 
or to sue for and recover such chose in action, or any interest in 
respect thereof, in any person or persons he may appoint (y). 

[y) See the notes to last section. 

Vn. And be it enacted, that where any infant shall be seised {%) or Mstates of 
possessed of any lands upon any trust or by way of mortgage (o), it trustees and 
shall be lawful for the Court of Chancery to make an order vesting mortgagees 
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 executed a conveyance or assignment of 
the lands in the same manner for the same estate (J). 

(z) " Seised " includes an estate tail [Re Sherard, 1 De O. J. & S. 421). 

f2 



68 TRUSTEE ACT, 1850. 

13 & 14 Vict. (a) As to what words in a will are sufficient to carry estates held on trust or - 
60, s 7 mortgage, and to prevent their descending on infant, &o., heirs, see Lewin, 207 ; 

lie Arrowsmith, 6 W. E. 642 ; Ee Finney, 3 GifE. 465 ; Lyaaght v. JEdwards, 2 Ch. 

Eeconveyanoe D. 499 ; and for the present law see Conveyancing Act, 1881, o. 30, and note 
of mortgaged thereto, infra. . , ., , 

and trust (*) An order vesting the legal estate of an infant remainderman in tail, made 

estates. with the consent of the tenant for life, as protector, will bar the entail [Powell v. 

„ J V ■ Matthews, 1 Jur. N. S. 973). Eor form of order see Seton, 503. See also Sargreaves 
Order barrmg ^ jfTright, 1 W. R. 408; Singleton v. Ropkins, i W. K. 107; Se Bloomar, 2 De G. 
entail. & J. 88 ; Se Lmh, 5 De G. & Sm. 436 ; Se Ellerthorpe, 18 Jur. 669. 

Contingent YIII. And be it enacted, that where any infant shall be entitled to 

trasters Ltd"' a^y contingent right in any lands upon any trust or by way of mort- 
mortgagees gage (c) it shall be lawful for the Court of Chancery to make an 
m land. order wholly releasing such lands from such contingent right, or dis- 

posing of the same to such person or persons as the said Court shaU 
direct ; and the order shall have the same e:5ect 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 {d). 

(c) See note (a) to s. 7, supra. 

(d) See last note, and as to contingent rights of unborn persons, see sect. 16. 

Trustees of IX. And be it enacted, that when any person solely seised or pos- 

landoMio/ gessed of any lands upon any trust (e) shall be out of the jurisdiction 
of the Court, of the Court of Chancery, or cannot be found, it shall be lawful for 
the said Court to make an order vesting such lands in such person or 
persons in such manner and for such estate as the said Court shall 
direct ; and the order shall have the same effect as if the trustee had 
duly executed a conveyance or assignment of the lands in the same 
manner and for the same estate (/). 

(e) As to the meaning of the word "trust," see s. 2, ante, p. 63. 
A mortgagee is not a trustee within the section (s. 2, amte). 

lUCortgagor (/) An absconding mortgagor was declared a trustee for the mortgagee after a 

out of juris- decree for foreclosure upon motion under this section (Lechmere v. Clamp, 31 Beav. 
diction de- 578 ; see 30 Beav. 218) ; but such a declaration could only be obtained on a separate 
clared trustee, application {Smith v. Boucher, 1 Sm. & G. 72) ; see the 30th section, and note (j) 
thereto, and Se Underwood, 3 K. & J. 745. 

Where a testator devised copyholds to one of two daughters and after his death 
both the daughters being his co-heiresses were admitted as tenants in common, it 
was held that an order vesting the legal estate of the daughter not beneficially 
entitled, who was out of the jurisdiction, in trustees for the other daughter, was 
rightly made under this section (McMurray v. Spicer, 5 Eq. 527). Where the '- 
defendant in a specific performance suit (who had been served by substitution) did 
not appear at the hearing the Court made a decree vesting the estate in the plaintiff 
{Murphy v. Vincent, 40 L. J. Ch. 378). See also Wilks v. Groom, 6 De G. M. & G. 
206 ; 2 Jur. N. S. 1077 ; ReSkitter, 4 W. E. 791. Where the heir of the last 
surviving trustee was a lunatic and out of the jurisdiction the order was made in 
the Chancery Division only [Re Gardner, 10 Ch. D. 29). 

Where per- X. And be it enacted, that when any person or persons shall be 

of'i^^s '*" seised or possessed of any lands joiatly (/") with a person out of the 
jointly with jurisdiction of the Court of Chancery, or who cannot be found, it shall 
jurMctim^ ^® lawful for the said Court to make an order vesting the lands in the 
, Court, &c. person or persons so jointly seised or possessed, or in such last-men- 
tioned person or persons together with any other person or persons, in 
such manner and for such estate as the said Court shall direct : and 



TBUSTEE ACT, 1850. 69 

tlie order shall have the same effect as if the trustee out of the juris- 13 & u Viot. 
diction, or who cannot he found, had duly executed a conveyance or "■ ^"i «■ 10. 
assignment of the lands in the same manner for the same estate (^r). 

(/■) The words "seised jointly" are not limited to a ^tTictlj Joint tenancy (Se 
Greenuood, 27 Ch. D. 359). 

(g) The section only applies ■where the persons are so seised upon a trust. An 
order, therefore, will not be made vesting in a purchaser the estate of an absent 
mortgagee, unless such mortgagee be also a tmstee [Re Osiorn, 12 Eq. 392: Se 
Walker, 3 Ch. D. 209 ; Me Watkin, "W. N. (1876), 232). 

Where a new trustee is appointed, in the place of one out of the jurisdiction, or 
who cannot be found, the estate may be vested in such new trustee and the con- 
tinuing trustees, notwithstanding the words of the latter part of this section (Smith 
V. Smith, 3 Drew. 72 ; 18 Jur. 1047 ; Se Marquis of Bute, Johns. 15 ; 5 Jur. N. S. 
487, overruling Me Watts, 9 Ha. 106 ; Me Flyer, ibid. 220). 

Where a legal estate had descended on two co-heirs of a deceased mortgagee ia 
fee, one of whom was out of the jurisdiction, an order was made under this section 
vesting it in the other alone (Me Tempter, i N. R. 494 ; Me Griemoood, 27 Ch. D. 
359 ; but see Me Osiorn; Me Walker). ' 

XI. And he, it enacted, that when any person solely entitled to a Contingent 
contingent right in any lands upon any trust shall he out of the juris- "i'^^^ °^ 
diction of the Court of Chancery, or cannot he found, it shall be lawful jurisdiction in 
for the said Court to make an order wholly releasing such lands from '""'''• 
such contingent right, or disposing of the same to such person or per- 
sons as the said Court shall direct ; and the order shall have the same 

effect as if the trustee had duly executed a conveyance so releasing or 
disposing of the contingent right. 

XII. And he it enacted, that when any person jointly entitled with Where per- 
any other person or persons to a contingent right in any lands upon ^ointiy en- 
any trust shall be out of the jurisdiction of the Court of Chancery, or titled with 
cannot be found, it shall be lawful for the said Court to make an order °/ie^I^risdicHon 
disposing of the contingent right of the person out of the jurisdiction, of the Court 
or who cannot be found, to the person or persons so jointly entitled as ,.°„^/i^ ^2" 
aforesaid, or to such last-mentioned person or persons together with 

any other person or persons ; and the order shall have the same effect 
as if the trustee out of the jurisdiction, or who cannot he found, had 
duly executed a conveyance so releasing or disposing of the contingent 
right. , 

XIII. And be it enacted, that where there shall have been two or When it is 

more persons jointly |Seised or possessed of any lands upon any trust ""^ff*'" 

and it shall be uncertain which of such trustees was the survivor, it several 

shall be lawful for the Court of Chancery to make an order vesting: trustees was 

. ■' inn ™® surmvor, 

such lands in such person or persons m such manner and for such lands may be 

estate as the said Court shall direct ; and the order shall have the same vested, 
effect as if the suxvivor of such trustees had duly executed a convey- 
ance or assignment of the lands in the same manner for the same 
estatb. 

XIV. And be it enacted, that where any one or more person or When it is 
persons shall have been seised or possessed of any lands upon any ^h^theTthe 
trust and it shall not be known, as to the trustee last known to have last trustee 
been seised or possessed, whether he be living or dead, it shall be °jt,j„Jor dead, 
lawful for the Court of Chancery to make an order vesting such lands 



70 



TRUSTEE ACT, 1850. 



13 & 14 Vict. 
0. 60, s. 14. 



When tnistee 
of land dies 
without an 
heir. 



in such, person or persons in suck manner and for such estate as the 
said Court shall direct ; and the order shall have the same effect as if 
the last trustee had duly executed a conveyance or assignment of the 
lands in the same manner for the same estate. 

XV. And be it enacted, that when any person seised of any lands 
upon any trust shall have died intestate as to such lands without an 
heir (A), or shall have died and it shall not be known who is his heir 
or devisee, it shall be lawful for the Court of Chancery to make an 
order vesting such lands in such person or persons in such manner and 
for such estate as the said Court shall direct ; and the order shall have 
the same effect as if the heir or devisee of such trustee had duly 
executed a conveyance of the lands in the same manner for the. same 
estate {hh). 

[h] See Be Wilkinson, 10 Jur. N. S. 716 ; 12 W. E. 522. 

[hh) This section does not apply to leaseholds (iJe Mundel, 8 W. R. 683) . But 
the drfficnlty may be got over by appointing' new trustees of the leaseholds and 
making a vesting order under sect. 34 (Re Rathbone, 2 Ch. D. 483 ; Re Balgleiih, 4 
Ch. D. 143 ; and see Re Crowe, 14 Ch. D. 610). 

Where a testatrix devised real estate in trust for sale, but the trustee died in her 
lifetime and it was not known who was her heir, the Court had no jurisdiction in 
the absence of the heir to appoint a trustee or make a vesting order Ifiwmon v. 
Simpson, 5 Eq. 332). 

Where a mortgage was made by way of trust for sale the mortgagee was held to 
be a trustee within this section [Re Underwood, 3 K. & J. 745 ; Re Keeler, 9 Jur. 
N. S. 95 ; 11 W. R. 62). Where a trustee of copyholds held in trust for a bene- 
ficiary absolutely died without an heir, the Court vested the estate in the beneficiary 
{Re Godfrey, 23 Ch. D. 205 ; 31 W. R. 426 ; and see sect. 28, post). 

As to the devolution of trust and mortgage estates on a death occurring after 
Slst December, 1881, see Conveyancing Act, 1881, b. 30, infra. 

Contingent XVI. And be it enacted, that when any lands are subject to a con- 

right of wniorn tingent right in an unborn person {i) or class of unborn persons who 
- - " upon coming into existence would in respect thereof become seised or 

possessed of such lands upon any trust, it shall be lawful for the Court 
of Chancery to make an order which shall wholly release and discharge 
such lands from such contingent right in such unborn person or class 
of unborn persons, or to make an order which shall vest in any person 
or persons the estate or estates which such unborn person or class of 
unborn persons would upon coming into existence be seised or possessed 
of in such lands {j). 

(i) See a similar provision in s. 30, infra, for discharge of contingent rights in a 
suit. There " unborn persons " are held to. include persons who cannot be ascer- 
tained, e. g., heirs of a living person, note [h], p. 78, post. 

(j) For oases on this section, see Sargreaves v. Wright, 1 W. E. 408 ; Wake v. 
17 Jur. 545 ; 1 W. R. 283. 



Discharge of 
contingent 
rightsin suits. 



Sects. 17 & 18. [The 17th and 18th sections of this Act are repealed by the " Trustee Extension 
Act, 1852," s. 2, post, p. 90.] 



Heir or 
devisee of 
mortgagee 
of land. 



XIX. And be it enacted, that when any person to whom any lands 
have been conveyed by way of mortgage 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 suchlast-mentionedperson 
shall consent to an order for the reconveyance of such land, then in any 



TRUSTEE ACT, 1850. 72 

of the following cases it shall be lawful for the Court of Chancery (k) to 13 & 14 Viot. 
make an order vesting such lands in such person or persons in such °' ^''' °' ^^- 
manner and for such estate as the said Court shaU direct; (that is to say), 

When an heir or devisee of such mortgagee shall be out of the [0"? of Juris- 

jurisdiction of the Court of Chancery, or cannot be found : 'H'Hon.'i 

When an heir or devisee of such mortgagee shall upon a demand by [Eefming to 
a person entitled to require a conveyance of such lands, or a duly °°°-'^^y-i 
authorised 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 authorised agent of such 
last-mentioned person : 
When it shall be uncertain which of several devisees of such mort- IVncertam.'] 

gagee was the survivor : 
When it shall be 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 : 
WTien such mortgagee shall have died intestate as to such lands, and [Intestate 
without an heir (J), or shall have died and it shall not be known jigi^^ 
who is his heir or devisee (m). 
And the order of the said Court of Chancery made in any one of the 
foregoing cases shall have the same effect as if the heir or devisee or 
surviving devisee (as the case may be) had duly executed a conveyance 
or assignment of the lands in the same manner and for the same 
estate {n). 

(4) Now the Cliancery Division of the High Court (Jud. Act, 1873, s. 34). 

(i) See Be Minchin, 2 W. B. 179. 

(m) See Ee TFhite, W. N. (1881), 115 ; 29 W. E. 820. 

(») It was at first held that this section applied only to oases of reconveyance 
after payment of the mortgage debt ; and not to oases where, the mortgage money 
not having been paid, it was desired to vest in the personal representatives of the mort- 
gagee the legal estate outstanding in his heir {Be Meyrick, 9 Ha. 116) ; but such 
orders have since been made {Be Bodm, 1 De G. M. & a. 57 ; 16 Jur. 279 ; 9 Ha. 
820 ; Be Lea, 6 W. E. 482). It seems doubtful, however, whether the order ought 
to be made unless a sale or transfer is contemplated {Be Hewitt, 27 L. J. Ch. 302 ; 
but see Be Led). 

For the recent enactments as to the devolution of trust and mortgage estates on 
death, see Conveyancing Act, 1881, a. 30, and note thereto, infra. 

XX. And be it enacted, that in every case where the Lord Chan- Power to 

ceUor, intrusted as aforesaid, or the Court of Chancery, shall, under appoint a 

. person to 

the provisions of this Act, be enabled to make an order havmg the convey in 

effect of a conveyance or assignment of any lands, or having the oertam cases. 
effect of a release or disposition of the contingent right of any person 
or persons, bom or unborn, it shall also be lawful for the Lord Chan- 
cellor, intrusted as aforesaid, or the Court of Chancery (as the case 
may be), should it be deemed more convenient, to make an order 
appointing a person to convey or assign such lands, or release or dis- 
pose of such contingent right (o) ; and the conveyance or assignment, 
or release or disposition, of the person so appointed, shall, when in 



72 TRUSTEE ACT, 1850. 

13 & 14 Vict, conformity with the terms of the order hy which he is appointed, have 
c. 60, B. 20. ^-^^ same effect, in conveying or assigning the lands, or releasing or 
disposing of the contingent right, as an order of the Lord Chancellor, 
intrusted as aforesaid, or the Court of Chancery, would in the par- 
ticular case have had under the provisions of this Act ; and in every 
case where the Lord Chancellor, intrusted as aforesaid, or the Court 
of Chancery, shall, under the provisions of this Act, be enabled to 
make an order vesting in any person or persons the right to transfer 
any stock transferable in the books of the Governor and Company of 
the Bank of England, or of any other company or society established, 
or to be established, it shall also be lawful for the Lord Chancellor, 
intrusted as aforesaid, or the Court of Chancery, if it be deemed more 
convenient, to make an order directing the secretary, deputy secretary, 
or accountant-general for the time being of the Governor and Com- 
pany of the Bank of England, or any ofB.cer of such other company or 
society, at once to transfer or join in transferring the stock to the per- 
son or persons to be named in the order ; and this Act shall be a fuU 
and complete indemnity and discharge to the Governor and Company 
of the Bank of England, and all other companies or societies and 
their officers and servants, for all acts done or permitted to be done 
pursuant thereto {p). 

(o) For form of order, see Seton, 507, No. 15. 

Ip) See Se Dickson, W. N. (1872), 223 ; 27 L. T. 671 ; S. 0. mm. Be Dixon, 21 
W. E. 220 ; Se Frice, W. N. (1883), 202, rated in note to sect. 25, post. 

In determining whether to make a vesting order or to appoint a person to con- 
vey, the Court is guided hy the relative expense of the two modes {Sancox v. Spittle, 
3 Sm. & Gr. 478 ; and see Sheperd v. Churchill, 25 Beav. 21 ; Wilka v. Groom, 6 
De a. M. & G. 205 : 2 Jur. N. S. 1077). 

As to lands in XXI. And be it enacted, that as to any lands situated within the 
Lancaster and Duchy of Lancaster or the Counties Palatine of Lancaster or Durham, 
it shall be lawful for the Court of the Duchy Chamber of Lancaster, 
the Court of Chancery in the County Palatine of Lancaster (y), or the 
Court of Chancery in the County Palatine of Durham, to make a Hke 
order in the same cases as to any lands within the jurisdiction of the 
same Courts respectively, as the Court of Chancery has under the 
provisions hereinbefore contained been enabled to make concerning 
any lands ; and every such order of Jhe Court of the Duchy Chamber 
pi Lancaster, the Court of Chancery in the County Palatine of Lan- 
caster, or the Court of Chancery in the County Palatine of Durham, 
shall, as to such lands, have the same effect as an order of the Court 
of Chancery : Provided always, that no person who is anywhere within 
the limits of the jurisdiction of the High Court of Chancery shaU be 
deemed by such local Courts to be an absent trustee or mortgagee 
within the meaning of this Act. 

17 & 18 Vict. (?) See now 17 & 18 Vict. o. 82, s. 11, which extends all the powers of this and 
c. 82, s. 11. the Extension Act to property in the County Palatine of Lancaster. But the Act 

does not give the "Vioe-Chanoellor of the Duchy Court jurisdiction in lunacy (Re 

Ormerod, 3 De G. & J, 249). 



TRUSTEE ACT, 1850. 73 

XXII. And be it enacted, that when any person or persons shall 13 & 14 Vict. 
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 Wheutrustees 
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 lutofthTj^a- 
order vesting the right to transfer such stock, or to receive the divi- ^J*'"". or 
dends or income thereof («), or to sue for or recover such chose in M«JrS! 
action, or any interest in respect thereof, either in such person or 
persons so jointly entitled as aforesaid, or in such last-mentioned 
person or persons together with any 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 be 
found, or it shall be uncertain whether he be living or dead, it shall 
be lawful for the said Court to make an order vesting the right to 
transfer such stock, or to receive the dividends or income thereof («), 
or to sue for and recover such chose in action, or any interest in 
respect thereof, in any person or persons the said Court may ap- 
point {t). 

if) Now the Cihancery Division of the High Court (Jud. Act, 1873, e. 3i). 

(s) These words include future dividends ; see cases decided upon next sections. 

it) Per forms of orders see Setou, 508-510 ; Coles v. Senbow, W. N. (1873), 60. 
An order was made where the death of a trustee could not be formally proved (Me 
Bourke, 2 De G. J. & S. 426). 

Where the husband of an executrix was out of the jurisdiction a vesting order Husband of 
was made under this section {Ex parte Bradshaw, 2 De Gr. M. & Gr, 900 ; see now executrix. 
Married Women's Property Act, 1882, s. 18, infra). 

Where one q| two trustees was dead, and it was uncertain whether the other was Surviving 
alive or not, the Court refused to treat him as a sole trustee (Re Randall, 1 Drew, trustee. 
401). Under special circumstances the fight to the stock or chose in action has been -y . . 
vested in the persons beneficially entitled {Re Ryan, 9 W. R. 137 ; Ex parte Brad- . ?'>§' 
ahaw; contra. Re Brass, 4 W. E. 764) ; and see Re Bomhe ; Re Dickson, W. N. ?^ 1™ . 
(1872), 223, S. 0. nom. Re Dixon, 21 W. E. 220. But orders which would be in "enehoianes ; 
effect administei-ing trusts wiU not be made ; and it seems that instead of vesting a 
trust fund in the beneficiaries the Court will appoint new trustees, and leave the 
persons beneficially entitled to take the necessary steps for putting an end to the 
trusts {Re Currie, 10 Ch. D. 93 ; Re Solland, 16 Ch. D. 672 ; Re Dickson, W. N. 
(1872), 223, S. C. nom. Re Dixon, 21 W. K. 220 ; but see Re Godfrey, 23 Ch. D. 205 ; 
31 W. R. 426). Where one of four trustees of stock was out of the jurisdiction and in three 
the Court vested in the other three the right to receive the dividends to accrue of four 
during their joint lives {Re Peyton, 2 De Gr. & J. 290 ; 25 Beav. 317 ; 4 Jur. N. S. trustees. 
370, 469). 

As to the order where a person of unsound mind was trustee of part of a sum of 
stock, and beneficially entitled to the rest, see Re Stewart,, 2 De Gr. F. & J. 1. 

The Court has power under this section to vest the right to receive the future 
dividends, as well as those already accrued {Re Feyton ; see, however, Re Sartnall, 
5 De G. & S. Ill ; 16 Jur. 33). 

XXni. And be it enacted, that where any sole trustee of any stock When trustee 

or chose in action* shall neglect or refuse to transfer such stock, or to °l * . °^^. 

, . . ° chose m action 

receive the dividends or income thereof, or to sue for or recover such refuses to 

chose in action, or any interest in respect thereof, according to the ^''"^f^''- 

direction of the person absolutely entitled thereto for the space of provisfonshi 

twenty-eight days next after a request in writing for that purpose case of lands, 

shall have been made to him by the person absolutely entitled thereto, 1862 s 2 

it shall be lawfid for the Court of Chancery to make an ofder vesting 

the sole right to transfer such stock, or to receive the dividends or 



74 



TRUSTEE ACT, 1850. 



13 & U Viet, 
li. 60, [i. 23. 



" Sole 
trustee." 



Service oa 

reousant 

trustee. 

When 9ne 
of several 
trustees of 
stock refuses to 
transfer or 
receive and 
pay over 
dividends. 



"Person 

absolutely 
entitled." 



When stock is 
standing in 
the name of a 
deceased per- 
son, and the 
personal 
representative 
is out of Juris- 
diction, &B. 



" Sole name 
of a deceased 
person." 



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 (m). 

(m) This section applies to the case of all the trustees refusing, where there are 
more than one, as well as to the case of a sole trustee refusing to transfer the stock 
or receive the dividends (Se Eartnall, 5 De G. & S. Ul ; Re Syatt, 21 Ch. D. 846 ; 
see, however, Se Spawforth, 12 W. B. 978). The Court has no power under this 
section to vest the right to receive future dividends {Be Sartnall ; but see Re Peyton, 
2 De G. & J. 290 ; 25 Beav. 317 ; 4 Jur. N. S. 370, 469). 

The 4 th section of the Extension Act extends the provisions of this section to the 
case of a trustee neglecting to obey an order of the Court ; see Mackenzie v. Mackenzie, 
5 De a. & Sm. 338. 

The words " person absolutely entitled " include new trustees of the stock sought 
to be transferred (Re Russell, 1 Sim. N. S. 404). But not one of two trustees; nor 
a tenant for life [Mackenzie v. Mackenzie), unless the application is for payment of 
dividends (Re Hartnall). 

The refusing trustee need not be served (Re Baxter, 2 Sm. & G. App. v. ; Ex parte 
Armstrong, 16 Sim. 296; Re Crowe, 13 Eq. 26). 

XXIV. And be it enacted, that where any one of the trustees of any 
stock or chose in action shall neglect or refuse to transfer such stock, 
or to receive the dividends or income thereof, or to sue for or recover 
such chose in action, according to the directions of the person absolutely 
entitled thereto {w), for the space of twenty-eight days next after a 
request in writing for that purpose shall have been made to him or her 
by such person, it shall be lawful for the Court of Chancery (a;) 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, in the other trustee or trustees (y) of the said stock or chose in 
action, or in any person or persons whom the said Court may appoint 
jointly with such other trustee or trustees. 

(w) As to these words see note (u) to s. 23. 

(x) Now the Chancery Division of the High Court (Judicature Act, 1873, s. 34). 

(y) Where one of the executors of a surviving trustee was a lunatic and the 
other executors refused to transfer shares, part of the trust property, to the person 
absolutely entitled, it was held that a vesting order could not be made on a petition 
presented in Chancery only (Re Nicholl, 18 W. E. 443) ; but a vesting order was made 
on a petition presented in Lunacy and Chancery (Re White, 5 Ch. 698 ; and see Re 
Wacher, 22 Ch. D. 535). 

XXV. And be it enacted, that when any stock shall be standing in 
the sole name of a deceased person (z), and his or her personal repre- 
sentative {a) shall be out of the jurisdiction of the Court of Chan,cery, 
or cannot be found, or it shall be uncertain whether such personal 
representative be living or dead, or such personal representative shall 
neglect or refuse to transfer such stock, or receive the dividends or 
income thereof, according to the direction of the person absolutely 
entitled thereunto, for the space of twenty-eight days next after a 
request in writing for that purpose shall have been made to him by 
the person entitled as aforesaid, it shall be lawful for the Court of 
Chancery to make an order vesting the right to transfer such stock, or 
to receive the dividends or income thereof, in any person or persons 
whom the said Court may appoint (i). 

(z) This includes stock in the name of two deceased persons as being in the name 
of the survivor (Re Bradshaw, Seton, 523). 



TRUSTEE ACT, 1850. 75 

(a) An executor of a surviving trustee who has not proved is a personal repre- 13 & 14 Viot. 

sentative within this section {Se Ellis, 24 Beav. 426) ; and so is the next of kin, who o. 60, s. 25. 
is entitled to take out admiuistration [Re Stroud, "W. N. (1874), 180). 



(4) An order was madfe under this section where the survivor of the two original " Personal 
trustees had died without a legal personal representative, and new trustees had been representa- 
appointed under the will [Se Crowe, 14 Ch. D. 304). tive." 

Where the survivor of two trustees of stock died leaving no personal representa- 
tive, Wickens, V.-C, appointed the person beneficially entitled a trustee under this 
section [Re Dickson, W. N. (1872), 223 ; 27 L. T. 671 ; S. C. mm. Be Dickson, 21 
W. R. 220 ; and see lie Price, W. N. (1883), 202). 

XXVI. And be it enacted, that where any order shall have been Effect of an 
made under any of the provisions oi this Act, vesting the right (bb) to t;te^leeal "^^ 
any stock in any person or persons appointed by the Lord Chancellor, right to 
intrusted as aforesaid, or the Court of Chancery, such legal right shall transfer stoo . 
vest accordingly, and thereupon the person or persons so appointed are 

hereby authorised and empowered to execute all deeds and powers of 
attorney, and to perform all acts relating to-the transfer of such stock 
into his or their own name or names or otherwise (c), or relating to the 
receipt of the dividends thereof, to the extent and in conformity with 
the terms of such order : and the Bank of England, and all companies 
and associations whatever, and all persons, shall be equally bound and 
compellable to comply with the requisitions of such person or persons 
so appointed as aforesaid, to the extent and in conformity with the 
terms of such order as the said Bank of England, or such companies, 
associations, or persons, would have been bound and compellable to 
comply with the requisitions of the person in whose place such appoint- 
ment shall have been made, and shaU. be equally indemnified in com- 
plying with the requisition of such person or persons so appointed as 
they would have been indemnified in complying with the requisition 
of the person in whose place such appointment shall have been made ; 
and after notice in writing of any such order of the Lord Chancellor, 
intrusted as aforesaid, or of the Court of Chancery, concerning any 
stock, shall have been given, it shall not be lawful for the Bank of 
England, or any company or association whatever, or any person 
having received such notice, to act upon the requisition of the person 
in whose place an appointment shaR have been made in any matter 
whatever relating to the transfer of such stock, or the payment of the 
dividends or produce thereof. 

(bb) See s. 6 of the Extension Act, infra. 

(o) Where it is sought to avoid an immediate transfer to the trustees the order 
may direct that the trustees are to have the right to call for a transfer of the funds 
to themselves or to any purchaser or purchasers, the trustees undertaking to hold the 
proceeds on the trusts of the settlement [Re Peacock, 14 Ch. D. 212 ; 43 L. T. 99 ; 
28 W. R. 801). 

XXVII. And be it enacted, that where any order shall have been Effect of an 
made under the provisions of this Act, either by the Lord Chancellor, °egal ri^trm 
intrusted as aforesaid, or by the Court of Chancery, vesting the legal a chose in 
right to gue for or recover any chose in action, or any interest in ^'*^°'°- 
respect thereof, in any person or persons, such legal right shall vest 
accordingly, and thereupon it shall be lawful for the person or persons 



76 



TRUSTEE ACT, 1850. 



13 & 14 Vict. 
0. 60, B. 27. 



Effect of an 
order vesting 
copyhold 
lands, or 
appointing' 
any person 
to convey 
copyhold 
lands. 



Copyholds 
vested with 
or without 
consent of 
lord. 

Fine payable. 



Form of 
order. 



When a 
decree is 
made for sale 
of real estate 
for payment 
of debts. 



SO appointed to carry on, commence, and prosecute, in his or their own 
name or names, any action, suit, or other proceeding at law or in 
equity for the recovery of such chose in action, in the same manner in 
all respects as the person in whose place an appointment shall have 
been made could have sued for or recovered such chose in action. 

XXVIH. And be it enacted, that whensoever, under any of the pro- 
visions of this Act, an order shall be made either by the Lord Chan- 
cellor, intrusted as aforesaid, or the Court of Chancery, vesting any 
copyhold or customary lands in any person or persons, and such order 
shall be made with the consent of the lord or lady of the ma^jor 
whereof such lands are holden, then the lands shall, without any 
surrender or admittance in respect thereof, vest accordingly; and 
whenever, under any of the provisions of this Act, an order shall be 
made either by the Lord Chancellor, intrusted as aforesaid, or the 
Court of Chancery, appointing any person or 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 the 
purpose of completing the assurance of such lands ; and all such acts 
and instruments so done and executed shall have the same efEect, and 
every lord and lady of a manor, and every other person, shall, subject 
to the customs of the manor, and the usual payments, be equally 
bound and compellable to make admittance to such lands, and to do 
all other acts for the purpose of completing the assurance thereof, as 
if the persons in whose place an appointment shall have been made, 
being free from any disability, had duly done and executed such acts 
and instruments {d). 

(d) This section dispenses with the necessity of surrender and admittance, where 
a vesting order is made with the lord's consent, but it does not require such con- 
sent, and where such consent is not given, the lord of the manor ought not to be 
served with the petition, for the order is without prejudice as to his rights {Se 
Flitchcroft, 1 Jur. N. S. 418 ; Re Howard, 3 W. K. 606 ; Paterson v. Fatersm, 2 Eq. 
31 ; Re Surst, Seton, 607, 1665 ; Ayles v. Cox, 17 Beav. 584). 

As to the fine payable to the lord on substitution of a trustee under this Act, see 
Bnstow V. Booth, L. R. 5 C. P. 80. 

It is settled that the lord need not appear in Court to consent [Ayles v. Cox; 
Cooper V. Jones, 25 L, J. Ch. 240, where a verified certificate of his consent was 
treated as sufficient). 

For a form of an order appointing a person to convey under this section, see Re 
Sey, 9 Hare, 221 ; and as to the application of the Act to copyholds, Re Colling- 
wood, 6 W. E. 536. 

The Queen's Bench issued a mandamus to enforce an order made under the section 
{Re Lane, 12 W. E. 710). 

Where a sole trustee of copyholds died intestate, and without an heir, the Court 
vested the premises in the sole beneficiary {Re Godfrey, 23 Ch. D. 205 ; 31 W. B. 
426). 

XXIX. And be it enacted, that when a decree shall have been made 
by any Court of Equity, directing the sale of any lands for the pay- 
ment of the debts of a deceased person (■«), every person seised or 
possessed of such lands, or entitled to a contingent right therein, as 
heir, or under the wiU 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 



TRUSTEE ACT, 1850. 77 

empowered to make an order wholly discharging the contingent right, 13 & 14 Viat. 
under the wiU of such deceased debtor, of any unhorn person (/). "• ^°' °- ^^- 

(e) For form of order under this section, see Seton, 527. The provisions of this Trustee under 
section are also extended to decrees for sales for payment of costs, &c. (as to which decree for 
see Westmi v. Filer, 5 De a. & Sm. 608), by sect. 1 of the Extension Act, where the sale. 
words are " for any purpose whatever ;" see 15 & 16 Vict. u. 55, s. 1, infra. 

(/) See Y'o^ T. Beettestone, 1 K. & J. 213 ; Oough v. Bage, "W. N. (1871), 237. 

The application under this section must be made in chambers (Ord. LV. r. 2 (8), Application 
infra; Clark v. Ward, 14 W. R> 241). in chambers. 

XXX. And be it enacted, that where any decree {g) shall be made Court to 

by any Court of Equity for "the specific performance of a contract declare what 

,j j!,i ,.,. , „ •■, parties are 

concerning any lands, or tor the partition or exchange of any lands, trustees of 

or generally when any decree shall be made for the conveyance or la^^s opm- 
assignment of any lands, either in cases arising out of the doctrine of guit and as'^ 
election or otherwise, it shall be lawful for the said Court to declare *° *^6 in- 
that any of the parties to the said suit wherein such decree is made are persons 
trustees of such lands or any part- thereof, within the meaning of this '"'bom. 
Act, or to declare concerning the interests of unborn persons {h) 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 life- 
time a party to the contract or transactions concerning which such 
decree is made, that such interests of unborn persons are the interests 
of persons who upon coming into existence would be trustees within 
the meaning of this Act ; and thereupon it shall be lawful for the 
Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as 
the case may be, to make such order or orders as to the estates, rights 
and interests of such persons, born or unborn, as the said Court or the 
said Lord Chancellor might under the provisions of this Act make 
concerning the estates, rights, and interests of trustees born or 
unborn. 

(y) Orders under this section may be made in an action without any separate Order in the 
proceeding under the Act {Harrison v. Smith, 17 W. R. 646 ; Sail v. Sale, W. N. suit. 
(1884), 185). 

It has been held that no vesting order is necessary to bind equitable interests Decree bind- 
which are afEected by a decree {Se Williams, 5 De G. & S. 515), unless the con- ing equitable 
structive trustee is out of the jurisdiction ; see Leehmere v. Clamp, 31 Beav. 578. interests. 

The Court has a discretion to declare a constructive trust by order on petition Tin,p„ „ 
under the Act without decree in a suit [Ee Angela, 5 De G. & Sm. 278, where a oonHtniotive 
mortgagor of shares resident out of the jurisdiction was declared a constructive i_,,j. can be 
trustee for the person to whom the shares were sold by the mortgagee upon the jgoi-red 
petition of such purchaser without suit). If it is desired to have a vendor or ™thout 
qiortgagor declared a trustee for a purchaser within the section, such declarations decree 
cannot be obtained without action, unless the contract is executed by payment of 
purchase-money, &o. [Se Cuming, 5 Ch. 72). 

Thus the infant heir of an alleged vendor could not be declared a constructive 
trustee for the purchaser, where the contract concerned realty, untU the rights had 
been ascertained by a suit {Re Carpenter, Kay, 418) ; see Me Weeding, 4 Jur. N. S. 
707 ; Cust V. MiddUton, 9 W. R. 242 ; Ee Draper, 9 W, R. 805 ; Ee Burt, 9 Hare, 
289, where the Court refused, on application under the Act without suit, to 
declare the infant heir of a deceased partner, whose surviving partner had exer- 
cised a rigfht of purchasing the partnership property given to him by the articles 
of partnership, a constructive trustee for the surviving partner. In Ee CoUinson, 
3 De Gr. M. & Gr. 409, the Court would not make an order on petition, declaring a 
son trustee for the father of property purchased in the son's name, though shortly 
after it made a decree to that effect in the suit ; but compare Be Be Visme, 2 De 
G. J. & S. 17. 



78 



TRUSTEE ACT, 1850. 



13 & 14 Vict. 
0. 60, s. 30. 



Vendor a 

conBtructive 

trustee. 



Infant 
defendant. 

Decree of 
foreclosure 
against 
imants. 

Partition 
suits. 



Unborn 
persons. 



But ■where a contract for purchase is executed, as, for example, Tctere the- 
purohase-money has been paid, the vendor or his heir will be declared a trustee 
under the Act without suit {He Cuming, 5 Ch. 72, following He CoUmgwood, 6 
W. R. 536, there cited; Ee Crowe, 13 Eq. 26; Re Taylor, W. N. (1866), 5). So, 
where the equitable estate was clearly in the petitioner {Re Wilkinson, 12 W. R. 
522 ; 10 Jur. N. S. 716). So, where a testator directed his executors to sell lauds 
and apply the money, and before his death contracted to sell the lands, the Court 
made an order i^psting the estate outstanding in his heir in the executors [Re 
Badeook, 2 W. R. 386) . So, where a vendor died before completion of a compulsory 
sale to a railway company, his heir was held a constructive trustee without bill 
filed [Re Russell, 12 Jur. N. S. 224 ; Re Lowry, 15 Eq. 78) ; and again, where lands 
purchased with the money of a railway company had been, conveyed to two 
persons as tenants in common without any express declaration of trust, it being 
clearly proved that the lands were only held in trust, the Court treated the infant 
heir of one of the tenants in common who died, as a trustee for the company 
within the Act {Re Brmcker, V.-C. W., Jan. 14, 1859). 

Where a decree was made for specific performance of an agreement to grant a 
lease, and the defendant refused to obey the order, he was declared a trustee of the 
premises and a person was appointed to execute the lease in his place {Sail v. Sale, 
W. N. (1884), 185 ; but see Graoe v. Baynton, "W. N. (1S77), 79 ; 25 "W. R. 506). 

As to what applications under the Acts must be made in Chambers, see Ord. 
LV. r. 2 (8), infra. 

Compare LysagHt v. Edwards, 2 Ch. D. 499 ; where the question how far a 
vendor, who dies before completion, is a trustee for the purchaser, is fully 
considered. 

One object of the section is said to have been to obviate the necessity of insert- 
ing, in decrees of foreclosure made against infants, a day for the infant to show 
cause against the decree ; see as to this, Newbury v. Marten, 15 Jur. 166 ; Foster v. 
Parker, 8 Ch. D. 147 ; Mellor v. Porter, 25 Ch. D. 158. In Bowra v. Wright, 
4 De Gr. & Sm. 265, which was a partition suit, the Court declared the inlant a 
trustee of such of the shares as were allotted to other parties. See now s. 7 of the 
Partition Act, 1%S%, post ; Re Bloomar, 2 De Gr. & J. 88; Re Molyneux, i De Gr. 
E. & J. 365 ; 10 W. R. 512, where, on a decree for partition being made against a 
lunatic tenant in tail, declaring her a trustee of certain hereditaments, the com- 
mittee declining to take any steps to complete the partition, a vesting order was 
made under this section and the Lunacy Regulation Act, 16 & 17 Vict. c. 70; 
Shepherd v. Churchill, 25 Beav. 21, where the shares of the parties to a partition 
suit were very minute and complicated, and the Court declared each of the parties 
trustees as to the shares allotted to the other of them, and vested the whole in a 
single trustee, with directions to convey to ^ach of the parties their allotted shares ; 
Orger v. Sparke, 9 W. R. 180 ; Suhbard v. Subbard, 2 H. & M. 38. 

(A) As to the power of the Court to bind unborn persons, see Sargreaves v. 
Wright, 1 W. R. 408, where on a bill filed by purchasers from a father and son 
having a joint power of appointment under a settlement, against the infant heir 
in tail of the son, who had died before the completion of the purchase, the Court 
made an order discharging the estate from the contingent rights of the unborn 
claimants under the settlement, and appointing a person to convey in the place of 
the infant; cf. Wake v. Wake, 1 W. R. 283; 17 Jur. 745. The word "unborn" is 
used in a large sense, and includes the right heirs of living persons who cannot be 
ascertained, and therefore cannot be made parties to a suit {Basnett v. Moxon, 20 
Eq. 182 ; Zees v. Coulton, 20 Eq. 20). 



Power to 
give direc- 
tions how 
the right to 
transfer stock 
is to be 
exercised. 



Stock ordered 
to be trans- 
ferred into 
Court. 



XXXI. And be it enacted, that it shall be lawful for the Lord 
Chancellor, intrusted as aforesaid, or the Court of Chancery, to make 
declarations and give directions concerning the manner in which the 
right to any stock or chose in action vested under the provisions of 
this Act shall he exercised ; and thereupon the person or persons in 
whom such right shall he vested shall be compellable to obey such 
directions and declarations by the same process as that by which other 
orders under this Act are enforced (i). 

(i) The Court may order the person to whom a fund is paid, to pay it into Court 
under the Trustee Relief Act {Re Thornton, 9 W. R. 475 ; Re Draper, 9 W. R. 805) ; 
hut an order for payment direct into Court will not be made {Re Party, 29 L. T. (O. S.) 
72) ; see, however. Re Pitt, 1 Jur. N. S. 1 156, and Re Dawson, 3 N. R. 397, cited in 
note {m),post, p. 81. 



TRUSTEE ACT, 1850. 79 

XXXn. And be it enacted, that whenever it shall he expedient to 13 & 14 Vict. 
appoint a new trustee or new trustees {k) and it shall he found inex- °" ' "' ^' 
pedient, difficult, or impracticable so to do without the assistance of the Power to 
Court of Chancery {I), it shaU be lawful for the said Court of Chancery orX'appTn^ 
to make an order appointing a new trustee or new trustees either in ing new- 
substitution for or in addition to any existing trustee or trustees (m). "^ ®®^' 

{k) New trustees of a composition deed for the benefit of creditors were appointed New trustees 
in Me Price's Trust, 6 Eq. 460 ; Re Saehe, W. N. (1868), 223 ; Be Raphael, 9 Eq. of oomposi- 
233 ; Se Thomson, 10 Ch. 55; and see Re Waddell, 2 Ch. D. 172; and new trustees tion deed, 
in place of those appointed under the Settled Estates Act (Scott v. Sersch, 24 W. R. 
108). 

Appointments of new trustees of charities maj be obtained under the Act ; but Charities. 
such appointments are generally made on summons in chambers under the Charitable 
Trusts Acts, 1853, infra, p. 94; see Re Conyer's School, 10 Hare, App. t. ; or in 
simple oases, and where the income is under 50^., by application to the Charity 
Commissioners under the Act of 1860, and the property maybe vested under sect. 45 
of this Act, p. 86, post. For the County Coiit jurisdiction where the property is 
imder 500?., see 28 & 29 Vict. c. 99, s. 1. 

Applications for the appointment of new trustees of a charity should be intituled 
under Sir S. EomUly's Act, 52 Geo. III. c. 101, as well as the Trustee Acts, 
and such'other Act as may be applicable (Lewin, 723 ; Re Rolle's Charities, 3 De C 
M. & Gr. 153 ; Re Bierton, 10 Ha. App. xxxviii. ; Re Gloucester CKarities, 10 Ha. 
App. iii.). The fiat of the Attorney-General and the saiiotion of the Charity Com- 
missioners should be obtained {Re Rolle's Charities ; Re Warwick Charities, 1 Phil. 
559 ; Re Lancaster Charitiex, 9 W. E. 192) ; unless the application is in a pending 
matter or action {Att.-Gen. v. Cooper, 8 Jur. N. S. 50 ; 10 W. E. 31 ; Re Jarvis, 1 
Dr. & Sm. 97). 

New trustees of an alien's will were appointed, the Crown not opposing [Re Mar- New 
tinez, W. N. (1870), 70) ; see Se Giraud, 32 Beav. 385 ; and see now 33 & 34 Vict. Teustees. 
0. 14, s. 2, enabling aliens to hold property. mi, ri i -n 

[I) This section only provides machinery in oases where, on the face of the instru- The Court wm 
ment, it appears difficult, impracticable, or inexpedient to act without the Court's °°'' °^ peti- 
aid ; and does not give the Court jurisdiction on petition to consider the validity of ./°- si^tor 
the instrument or the conduct of trustees. ^^^ 

(1) The Court will not consider the question of validity {Re Matthews, 26 Beav. (1) Validity 
463 ; 5 Jur. N. S. 184 ; Re Sarrison, 22 L. J. Ch. 69) ; and see Att.-Gen. v. Ward, of instru- 

6 Hare, 477, where the deed declaring the trusts had not been enrolled (as it should ments ; 
have been), but the Court appointed new trustees, the old trustees adiuitting the 
trusts. 

(2) The Court will not, on petition, appoint a new trustee on any ground not (2) Misoon- 
appearing on the face of the instrument ; e. g., on the ground of the trustee's mis- duct of 
conduct {Re Bridgman, 1 Dr. & Sm. 164 ; Legg v. Mackrell, 1 Gifl. 165) ; or because trustees. 

of disagreements between the trustee and cestui que trust [Forster v. Bavies, 4 De G. 
F. & J. 133) ; or because the donee of the power is about to exercise it corruptly 
{Re Sodson, 9 Hare, 118 ; Re SadUy, 5 De G. & Sm. 67). 

Nor will the Court, on petition under the section, remove a trustee without or 
against his consent {Re Blanchard, 3 De G. E. & J. 131 ; 9 W. E. 647 ; Re Garty, 
10 L. T. 331 ; Re Bennis, 12 W. K. 575). In such cases an action must be brought 
(Lewin, 882); butsee -Ke^3/r««, 18L. T. 631, where a trustee showed by his conduct 
that he declined to act ; Be Bignold, 7 Ch. 223, where he had gone to reside abroad. 

The Court has considered it expedient to exercise its statutory powers of appointing Cases : (A) 
new trustees in the following cases : — • where expe- 

"Where a vesting order could not otherwise have been obtained ; thus, at the instance dietii to ap- 
of the Bank of England, a fund which belonged to the Lords of the Eegenoy of point new 
Hanover, who ceased to exist as a corporation on the annexation by Prussia, was trustees, 
tranrferred by the intervention of trustees appointed by the Comt [King of Sanover -ci. j. . f 
v. Bank of England, 8 Eq. 350) ; but see note {p), p. 66, for vesting orders made v V k f"^ 
when there was no one who had an existing estate or interest, and Re Briver and Re J^ -^^ 
Rathione there cited. =■ 

Where there was great difficulty in obtaining administration to a deceased Difficulty in 
trustee {Re Matthews, 26 Beav. 463 ; Bavia v. Chanter, 6 W. E. 416). administering 

Where one of two trustees for sale was an infant (iJe Barter, 2 Jur. N. S. 349). to deceased 
And the Court wiU generally appoint a new trustee in the place of an infant, even trustee ; 
though appointed by the testator himself {Re Gartside, 1 W. E. 196) ; but the order . . 
should be without prejudice to any application by the infant to be restored to the ™**'"'y i 



80 



TRUSTEE ACT, 1850. 



13 & U Viot. 
u. 60, n. 32. 



residence 
abroad ; 



age and 
infirmity; 

bankruptcy. 



Felony. 

(B) Where 
impracticable 
to appoint 
without 
Court's aid : 

(1) Where 
donee of power 
lunatic. 

16 & 17 Viot. 
c. 70. 



(2) Where 
power in 
instrument 
insufficient. 



Where 

trustees 

disclaim. 

Conveyancing 
Act, 1881. 



Discretion of 
the Court. 

Number 
of trustees 
appointed. 



trusteeship on coming of age (Ee Shelmerdine, 33 L. J. Ch. 474 ; He Sruat, W. N. 
(1883), 220). 

For the practice where a trustee becomes lunatic, see note (o), p. 65 ; and see 
Ee East, 8 Ch. 735. 

It has been held, that the mere fact of a trustee residing out of the jurisdiction 
of the Court is not always a ground for holding it expedient to appoint another in 
his place (Be Mais, 16 Jur. 608 ; Ee Moravian Society, 26 Beav. 101 ; Ee Watts, 9 
Hare, 106 ; Withington t. Withington, 16 Sim. 104, where a trustee who had gone 
to reside in China was held not to be incapable of acting) ; and see Be Blanchard, 
and other cases, supra. But see Mennard v. Welford, 1 Sm. & Gr. 426 ; Be Guibert, 
16 Jur. 852; Be Stewart, 8 W. R. 297; Be Joyce, 2 Eq. 576 ; Be Bignold, 7 Ch. 
223, which decide the contrary. 

So, where a trustee is incapable of acting by reason of age and infirmity, the Court 
considers it expedient to appoint [Be Lemann, 11 Ch. D. 633). 

The mere fact of a trustee becoming bankrupt was not a sufficient ground for the 
Court under the Trustee Act to appoint a new trustee in his stead {Be Benshaw, 4 
Ch. 783) ; but by the Bankruptcy Act, 1883, s. 147 (re-enacting with only verbal 
alterations s. 117 of the Bankruptcy Act, 1869), "where a bankrupt is a trustee 
within the Trustee Act, 1850, s. 32 of that Act shall have effect so as to authorise 
the appointment of a new trustee in substitution for the bankrupt (whether 
voluntarily resigning or not) if it appears expedient to do so, and all provisions of 
that Act, and of any other Act. relative thereto shall have effect accordingly ; " 
and the Court will now remove a bankrupt trustee or a trustee who has liquidated by 
arrangement whenever he has trust money to receive, or deal with, which he can 
misappropriate [Be Barker, 1 Ch. D. 43 ; Be Adams, 12 Ch. D. 634 ; and see Goombes 
V. Brookes, 12 Eq. 61). 

Where of three trustees one was dead, another had become bankrupt and absconded, 
and the third had become lunatic, new trustees were appointed, and a right to call 
for a transfer of the trust estate vested in them (Be Duee, 30 W. R. 759) . 

As to appointing a new trustee in place of a person convicted of felony, see 
" Trustee Extension Act, 1852," post, a. 8. 

Cases where it is impracticable to appoint new trustees without the aid of the 
Court arise where there is a power given by an instrumeiriHtor appointment of new 
trustees, but either (1) the donee of the power is incapacitated by lunacy or other 
causes, or (2) the words of the power do not apply to the case which has arisen. 

(1) Where the incapacity of the donee arises from lunacy, the application may 
be made under the Lunacy Regulation Act, 16 & 17 Viot. c. 70, for the committee 
to appoint, and therefore the Court will not appoint in the absence of the committee 
{Be Parker, 32 Beav. 580 ; Be Bowmer, 3 De Gr. & J. 658) ; but a new trustee in 
place of a lunatic trustee, whether so foimd or not, may be appointed under the 
Chancery jurisdiction {Ee Sparrow, 5 Ch. 662) ; see Be Boyce, 3 N. R. 396 ; 12 
W. R. 359 ; Ee Viekers, 3 Ch. D. 112 ; Ee Seaphy, 18 W. R. 1070. 

So, where the donee of a power to appoint new trustees was in India, new trustees 
were appointed under the Act {Be Sumphry, 1 Jur. N. S. 921). 

(2) Eor oases where the power given by the instrument did not meet the case 
which happened, see Lewin, 559 ef seq.; Be Woodgate, 5 W. R. 448 ; Be Sarrison, 
11 L. J. Ch. 69 (where the power provided for the case of a trustee being incapable, 
unwilling, or unable, and the event was that a trustee went abroad) ; Cooper v. 
Maedonald, 14 W. R. 755 ; TraA>is v. Illingworth, 2 Dr. & Sm. 345 ; Be Dawson, 
3 N. R. 397, where a trustee was unable to sign from ill health. See also Ee 
Glenny and Hartley, 26 Ch. D. 611, and Be Norris, 27 Ch. D. 333, where Travis v. 
Blingworth is discussed. 

Where the application is in consequence of a trustee refusing to act, the disclaimer 
may be made at the bar of the Court {Foster v. Dawber, 1 Dr. & Sm. 172; Ee Barnes, 
Seton, 542). 

Many cases where formerly it would have been impracticable to act without the 
aid of the Court are now provided for by the Conveyancing Act, 1881, s. 31, which 
contains extensive powers for the appointment of new trustees; see post, p. 117; 
and where the appointment can be thus effected it is improper to apply under the 
Trustee Acts {Be Gibbon, W. N. (1882), 12 ; 30 W. R. 287). The section was not 
intended, however, to vary the practice of the Court under the Trustee Act {Ee 
Aston, 23 Ch. D. 217). 

{m) The Court exercises a discretion in appointing new trustees ; and as to its 
general rules and principles in the selection, see He Tempest, 1 Ch. 485: The Court 
generally appoints such number of trustees as is necessary to make up the original 
number : it will increase the number if it thinks fit {Be Tunstall, 4 De Gr. & S. 
421 ; 15 Jur. 645 ; Ee Boycott, 5 W. R. 15 ; Ee Braekenbury, 10 Eq. 45 ; and see 
Viscountess D' A dhemar y. Bertrmd, 35 Beav. 19), but will not diminish it except 
under special circumstances {Bulkeley v. Earl of Eglinton, 1 Jur. N. S. 994 ; Ee 



TRUSTEE ACT, 1850. gj 

Colyw, 43 L. T. 454 ; W. N. (1880), 131). Where, however, all that remained to 13 & U Viet 
De done was to distribute the trust fund, and there was a difficulty in finding o 60 s 32 ' 

persons willing to act as trustees, the Court appointed two trustees in the place of — — L 

tbiee(Re Marriott, "W. N. (1868), 215; and see Re Watson, 19 Ch. D. 384). The 
Court has appointed the continuing trustees to be sole trustees in the place of the 
oontinuing and retiring trustees {Re Stakes, IS Eq. 333 ; Re Sarford, 13 Ch. D. 
/, oo'a, ^''*«'»> W. N. (1877), 259 ; Re Crowe, 14 Ch. D. 610 ; Re Gibbin, "W. N. 
9QW -R ' -'^^ ^^W**"*"". "W. N. (1880), 155; Re Northrop, W. N. (1880), 184; 
i.^'i '^^*' ' ^^^ ^^ practice has been disapproved of, and in a recent case was 
not followed {Re Aston, 23 Ch. D. 217 ; and see Re Lamb, 28 Ch. D. 77 ; Re 
Nash, 16 Ch. D. 503 ; Re Golyer, W. N. (1880), 131 ; 43 L. T. 454). Where, how- 
ever, the fund is immediately divisible, there is no objection to this course being 
taken (iJe Martyn, 26 Ch. D. 745, where the right to deal with the trust funds was 
vested m two out of three trustees, the third having become a lunatic). The Court 
■mil not generally appoint a single ti-ustee {Re Dickinson, 1 Jur. N. S. 724 ; Re 
Ellison, 2 Jur. N. S. 62 ; Re Rwter, 2 Jur. N. S. 349 ; Re Roberts, 9 W. E. 758 ; 
Grant v. Grant, 34 L. J. Ch. 641 ; 6 N. R. 347), even where there was only one 
originally {Re Tunstall, 4 De G. & S. 421 ; 15 Jur. 645). It was done so, however, 
on an allegation that the trust was almost wound up {Re Reynault, 16 Jur. 233 ; 
Me Dickson, W. N. (1872), 223 ; S. 0. mm. Re Dixon, 21 W. E. 220). And where, 
by the will, only one trustee was appointed, the Court appointed an additional 
trustee at the cost of the reversioners who presented the petition {Re Srackenbury, 
10 Eq. 45). 

The Court has appointed n%w trustees of one or more specific trusts created by Trustees 
an instrument, and not of the entire instrument {Re Catterill, W. N. (1869), 183 ; appointed of 
Re Dennis, 3 N. E. 636 ; 12 W. E. 575 ; Re Cunard, 27 W. E. 52 ; Re Grange, part of the 
W. N. (1881), 60). _ trust pro- 

The Court will not appoint one of the cestuis que trust to be a trustee, except perty. 
under very special circumstances ; as where no disinterested person can be found to who an 
accept the office {Ex parte Clutton, 17 Jur. 988 ; Re Conybeare, 1 W. E. 458 ; Re pointed " 
Roskell, Seton, 547 ; Re Clissold, 10 L. T. 642) ; or where the cestuis que trust are ^ 
entitled to receive the fund {Re Ourrie, 10 Ch. D. 93 ; Re Dickson, W. 'N. (1872), 
223 ; S. C. nom. Re Dixon, 21 W. E. 220). The Court is also unwilling to appoint 
a near relation of the cestuis que trust {Wilding v. Bolder, 21 Beav. 222 ; Re Battatt, 
W. N". (1870), 14 ; 18 W. E. 416 ; Re Burgess, W. N. (1877), 87). . 

The Court refused to appoint a foreigner resident abroad {Re Ouibert, 16 Jur. 
852 ; Re Long, 17 W. E. 218) ; but where the beneficiaries are residing abroad, or 
there are other special circumstances, the Court will appoint persons resident out of 
the jurisdiction {Re Smith, W. N. (1872), 134 ; 20 W. E. 695 ; Re Sill, W. N. 
(1874), 228 ; Re Drewe, W. N. (1876), 168 ; Re Cunard, 27 W. E. 52 ; Re Liddiard, 
14 Ch. D. 310). A feme sole may be appointed {Re Campbell, 31 Beav. 176 ; Re 
Berkley, 9 Ch. 720). Where no one else conld be found, the husband of one of 
the beneficiaries was appointed, on his undertaldng to appoint a new trustee to act 
with himif ever he became sole trustee {Re Farrott, W. N. (1881), 158 ; Me Lightbody, 
W. N. (1885), 3 ; and the petitioner's soUoitor has been appointed where there 
was a difficulty in getting anybody else {Me Brentnall, W. N. (1872), 77) ; though 
as a rule such an appointment will not be made {Re Orde, 24 Ch. D. p. 272). 

The Court requires a written consent by the new trustees to act, unless counsel Consent of 
consent on their behalf {Me Parke, 21 L. T. (0. S.) 218) ; but they need not appear new trustees, 
to consent {Re Draper, 2 W. E. 440). An affidavit of their fitness must be pro- Affidavit 
dnced {Re Battersby, 16 Jur. 900; Me Tunstall, 4 De G. & S. 421 ; 15 Jur. 645, of fitness. 
981). As a general rule, an affidavit of fitness by the solicitor is not enough 
{GruMdy v. Biickeridge, 22 L. J. Ch. 1007 ; 17 Jur. 731 ; Re Sartley, W. N. (1879), 
197). 

Where parties interested objected to the trustees proposed to be appointed, and New trustee 
desired the property to be paid in under the Trustee Belief Act, the Court made to pay into 
an order vesting the property in the proposed trustees, on an undertaking by them Court, 
to transfer it into Court within a month {Me Dawson, 3 N. E. 397, and see note (i), 
p. 78, supra). 

Since the passing of the Trustee Extension Act, sect. 9, post, p. 93, the Court Where there 
can act under this section, when there are no existing trustees, even though the are no exist - 
trustees all died in the testator's lifetime {Re Smirthwaite, 11 Eq. 251), but in such jng trustees. 
a case the heir must be served {Gunson v. Simpson, 5 Eq. 332). Trustees were 
appointed where the testator had appointed executors, but no trustees {Re Davis, 
12 Eq. 214 ; Dodkin v. Brunt, 6 Eq. 580 ; and see Re Gillatt, 25 W. E. 23 ; Me 
Moore, McAlpiney. Moore, 21 Ch. D. 778). See also PatersonY. Paterson, 2 Eq. 31 ; 
35 Beav. 506, where the trustees had disclaimed. 

XXXm. And be it enacted, that the person or persons who, upon The new 

trustees to 
M. G 



32 



TRUSTEE ACT, 1850. 



13 & U Viot. 
u. 60, a. 33. 

baye the 
powers of 
brustees ap- 
pointed by 
decree in suit. 

Power of 
Court to vest 
lands in new 
trustees. 



Vesting lands 
under decree. 



■Whether a 
declining 
trustee must 
execute deed 
of disclaimer. 



Porm of 
order. 



Vesting in 
new and old 
trustees as 
joint tenants 



the making of such order as last aforesaid, shall be trustee or trustees, 
shall have all the same rights and powers as he or they would have 
had if appointed hy a decree in a suit duly instituted («). 

(«) As to the powers of trustees appointed by the Court, see Conveyancing Act, 
1881, s. 33, infra. 

XXXrV. And be it enacted, that it shall be lawful for the said 
Court of Chancery (o), upon making any order for appointing a new 
trustee or new trustees {p), either by the same or by any subsequent 
order to direct that any lands {q) subject to the trust shall vest in the 
person or persons who upon the appointment shall be the trustee or 
trustees, for such estate as the Court shall direct (r) ; and such order 
shall have the same effect as if the person or persons who before 
such order were the trustee or trustees (if any) had duly executed all 
proper conveyances and assignments of such lands for such estates. 

(o) Kow the Chancery Division of the High Court (Judicature Act, 1873, s. 34). 

[p] A Testing order was made under this section, where trustees previously 
appointed by the parties were reappointed by the Court (fle Clay, W. N. (1873), 
129). 

Where a mortgagee's executors had, by decree, been ordered to transfer the 
mortgage debt to the trustees of a settlement, it was held that this was an appoint- 
ment of new tnistees by the Court, and that a vesting order of the mortgaged 
property might be made under this section [Se Hughes, 2 H. & M. 695). 

(?) Under this section "lands" include leaseholds; see note (5) to s. 2, ante, 
p. 64. Where there was no legal personal representative of the surviving trustee, 
the Court made a vesting order as to leaseholds [Se Eathbone, 2 Ch. D. 483 ; Re 
Dalgleish, 4 Ch. D. 143). 

(r) Before the Court will under this section make an order devesting the estate 
out of a trustee declining to act, it seems to have been thought by V.-C. Wood 
that the trustee so declining must execute a deed of disclaimer ; as an executor, 
even though he may not have proved the will, must finally renounce before an 
order will be made tavest an estate in his co-executor [Re Badcock, 2 W. R. 386) ; 
a parol disclaimer, on the hearing of the petition, not being sufficient {fie Mlison, 

2 Jur. N. S. 62). But this dictum has been doubted by other judges {Foster v. 
Dau-ber, 1 Dr. & Sm. 172). 

For a form of vesting order under this section, see Seton, 639 ; Sancox v. Spittle, 

3 Sm. & G-. 478; Re Mllis,2i Beav. 426, where the Court directed the circum- 
stances bringing the case within the Act to be inserted in the order. See, too. Re 
Mainwarinff, 26 Beav. 172, from which it seems that where the Bank is required to 
transfer stock, this should always be done. 

The Court may make an order vesting the estate which is outstanding in the old 
and continuing trustees in the new and continuing trustees as joint tenants (see 
note (17) to sect. 10), and for the oases on the farm, &o., of vesting orders under 
the Act, see note {p), p. 65, ante. 

XXXV. And be it enacted, that it shall be lawful for the said 
Court of Chancery upon making any order for appointing a new 
trustee or new trustees, either by the same or any subsequent order 
to vest the right to call for a transfer (s) of any stock subject to the 
trust, or to receive the dividends or income thereof, or to sue for or 
recover any chose in action, subject to the trust, or any interest in 
respect thereof, in the person or persons who upon the appointment 
shall be the trustee or trustees. 



(«) This section only empowers the Court to vest the right ' ' to call for a transfer " 
of stock {Re Smyth, 4 De G. & S. 499 ; 15 Jur. 644) ; under o. 6 of the Extension 
Act the right to the stock itself is vested. 



TRUSTEE ACT, 1850. 83 

XXXVI. And be it enacted, that any such appointment by the 13 & 14 Vict. 
Court of new trustees, and any such conveyance, ■ assignment, or °' ^°' °" ^^' 
transfer as aforesaid, shall operate no further or otherwise as a dis- Old trustees 
charge to any former or continuing trustee than an appointment of ohLged^from 
new trustees under any power for that purpose contained in any liability, 
instrument would have done. 

XXXVn. And be it enacted, that an order under any of the here- Who may 
inbefore contained provisions, for the appointment of a new trustee or ^PP^^' 
trustees, or concerning any lands, stock, or chose in action subject to a 
trust, may be made upon the application of any person beneficially 
interested {t) in such lands, stock, or chose in action, whether under 
disability or not, or upon the application of any person duly appointed 
as a trustee thereof ; and that an order under any of the provisions 
hereinbefore contained concerning any lands, stock, or chose in action 
subject to a mortgage may be made on the application of any person 
beneficially interested ia the equity of redemption, whether under 
disability or not, or of any person interested in the monies secured by 
Such mortgage (m). 

(<) A person having a contingent interest in real estate {He Sheppard, i De Q-. Who are 
F. & J. 423 ; 9 Jnr. N. S. 59, overruling S. C. 8 Jur. N. S. 711 ; 10 "W. E. 704), a persons 
creditor who has obtained a decree for administration and sale of real estate (He beneficially 
Wragg, 1 De G-. J. & S. 356), and a purchaser who has paid his purchase-money interested 
into Court (^yfes V. Cox, 17Beav. 584), are " persons beneficially interested " within 
the meaning of the section ; but the dommittee of a, lunatic cestui que trust is not 
such a person [Se Bourke, 2 De Gr. J. & S. 426). 

(m) As a general rule, all persons beneficially interested in the property, or parties "Who must 
to the suit, where the application is made in a suit, must join in the application concur. 
or be served (Re Richards, 5 De G. & S. 636 ; Re Fellows, 2 Jur. N. S. 62 ; Re Sloper, 
18 Beav. 596). Where, however, the cestuis que trust are very numerous, or some 
other snfScient reason why they should not all be served is shown by affidavit, ser- 
vice on some of them may be dispensed with {ReSmyth, 2 De Gr. & S. 781 ; Re Sharpley, 
1 W. R. 271 ; Re Blanchard, 3 De Q. F. & J. 131 ; Re Lightbody, W. N. (1885), 3. If 
the application is for the appointment of new trustees and there are old trustees who 
are desirous of retiring they must be served or join as co-petitioners [Re Sloper, 18 
Beav. 596), unless they are of unsound mind [Re East, 8 Ch. 735 ; Re Green, 10 Ch. 
272), or permanently residing abroad {Re Bignold, 7 Ch. 223) ; or have absconded 
j^Sydev. Benbow, W. N. (1884), 117). Where all the trustees of a will have died 
in the testator's lifetime, a petition for the appointment of new trustees of the real 
estate and a vesting order should be served on the heir {Re Smirthwaite, 11 
Eq. 251). 

The husband of a married woman petitioner need not now be a co-petibioner or 
respondent {Re Outwin, 31 W. E. 374; and see Married Women's Property Act, 
1882, infra). 

[Sects. 38 and 39 were repealed by the Statute Law Eevision Act, 1875.] 

XL. And be it enacted, that any person or persons entitled in Power to pre- 
manner aforesaid to apply for an order from the said Court of Chan- sent petition 
cery(«;), or from the Lord Chancellor, intrusted as aforesaid, may, instance. 
should he so think fit, present a petition (w) in the first instance to the 
Court of Chancery, or the Lord Chancellor, intrusted as aforesaid, for 
such order as he may deem himself entitled to, and may give evi- 
dence {x) by affidavit or otherwise in support of such petition before 
the said Court, or the Lord Chancellor, intrusted as aforesaid, and 
may serve {y) such person or persons with notice of such petition as he 
may deem entitled to service thereof. 

{v) Now the Chancery Division (Judicature Act, 1873, s. 34 (2)). 

02 



H 



TRUSTEE ACT, 1850. 



13 & 14 Viet. 
0. 60, B. 40. 



Bvidence. 



Service on 
•■eatuis que 
'rust and 
trustees. 



Service of 
letition by 
lenant for 
ife; 



)y lunatic, 
)y bankrupt, 
in inoum- 
)rancera. 



(tel Where there has been a judgment or order for the sale, conveyance or 
transfer of stock, or of any hereditaments, the application is made in chambers 
(Ord. LV. r. 2 (8), infra). If the appUoation is unnecessarily -made by petition the 
extra costs will be ordered to be paid by the petitioner {Olark v. IFard, 14 W. R. 
241). 

{x) In £e Fickance, 10 Hare, App. xxxv., the Court allowed affidavits filed in a 
cause to be used as evidence on a petition in the matter of the Acts ; and as to 
evidence in support of a petition under this Act, see He Hoskins, i De G-. & J. 436, 
where on a petition for appointing new trustees of a will containing gifts to classes, 
an affidavit of the solicitor was received as sufficient evidence of the persons con- 
stituting the classes without the production of baptismal and other certificates. 

[y) The general rule is, that all the cestuis que trust should be served, including 
infants (iJe Fellows, 2 Jur. N. S. 62). In cases of retiring trustees, the old trustees 
also (Re Sloper, 18 Beav. 596) should be served ; and see Mx parte Hardman, 3 M. D. 
& De G. 559, where the cestuis que trust were abroad ; Be Sickards, 5 De Gr. & Sm. 
636 ; EeLightbody, W. N. (1885), 3. 

But service on all the cestuis que trust, where they are very numerous, may be 
dispensed with [Re Sharpley, 1 W. R. 271 ; Re Smyth, 2 De Gr. & Sm. 781), and 
trustees with a power of sale sufficiently represent their cestuis que trust {Re 
Jilanchard, 3 De a. E. & J. 131). . 

Service upon infant respondents was dispensed with in Se Tweedy, 9 W. R. 398 ; 
Fe milan, ibid. 689 ; Re Wise, 5 De G. & Sm. 415 ; Re Little, 7 Eq. 323. 

A trustee refusing to transfer need not be served with a petition under the 23rd 
and 24th sections; see note («), p. 74, ante. 

The Court will not make a vesting order on petition of a lessee or tenant for Ufa 
without service on the remaindermen (Re Farrant, 20 L. J. Ch. 632 ; Re Maynard, 
16 Jur. 1084) ; but see Re Fryse, 10 Eq. 631. Where the lease contained no clause 
prohibiting assignment, an order vesting leaseholds was made in the absence of the 
lessor (Re Matthews, 2 W. R. 85). A petition as to lands vested in a lunatic trustee 
must be served upon the committee (Re Saumarez, 8 De Gr. M. & G. 390 ; Re Wylde, 
6 De G. M. & G. 25) ; and see Re Wood, 3 De G. E. & J. 125 ; Re Farker, 32 Beav. 
580 ; Re East, 8 Ch. 736 ; as to service of a petition to appoint new trustees in the 
place of a bankrupt upon the trustee, see Ex parte Garden, 12 Jur. 391, and on the 
bankrupt himself, see Ex parte Whitley, 1 Dea. 478 ; Ex parte Sarris, 11 L. J. 
Bkcy. 16. An order to vest lands subject to an annuity may be made in the 
absence of the annuitant (Re Winteringham, 3 W. R. 578) ; see Ex parte Marshall, 
3 De G. & Sm. 679. 

See further as to services, the note on costs, note (k) to sect. 51, infra, p. 87. • 



^at may be 
lone upon 
letition. 



XLI. And be it enacted, that upon the heEiiing of any such, motion 
or petition it shall be lawful for the said Court or for the said Lord 
Chancellor, should it be deemed necessary to direct a reference to one 
of the Masters in Ordinary of the Court of Chancery to inquire into 
any facts which require such an investigation, or it shall be lawful for 
the said Court or for the said Lord Chancellor to direct such motion or 
petition to stand over to enable the petitioner or petitioners to adduce 
evidence or further evidence before the said Court or before the said 
Lord Chancellor, or to enable notice or any further notice of such 
motion or petition to be served upon any person or persons (z). 



(z) The words in italics were repealed by Statute Law Revision Act, 1875. 



'ourt may 
ismiss peti- 
ion with or 
rithout costs. 



XLII. And be it enacted, that upon the hearing of any such motion 
or petition, whether any certificate or report from a Master shall have 
been obtained or not, it shaU be lawful for the Court, or the Lord 
Chancellor, intrusted as aforesaid, to dismiss such motion or petition, 
with or without costs, or to make an order thereupon in conformity 
with the provisions of this Act (a). 



(a) The words in italics were repealed by the Statute Law Revision Act, 1875. 



TRUSTEE ACT, 1850. 85 

XLIII. And be it enacted, that whensoever, in any cause or matter, 13 & 14 Vict, 
either by the evidence adduced therein, or by the admission of the "- ^°' ^- ^^" 
parties, or by a report of one of the Masters of the Court of Chancery, Power to 
the facts necessary for an order under this Act shall appear to such ™^g^ f^^ 
Court to be sufficiently proved, it shall be lawful for the said Court, cause, 
either upon the hearing of the said cause or of any petition or motion 
in the said cause or matter, to make such order under this Act (i). 

(4) See as to this section, Frodsham v. Frodsham, 15 Ch. D. 317. G-enerally, an Orders under 
order may be made in a cause -without a petition {Wood v. Beetlestone, 1 Ei. & J. Act made in 
213 ; Viscountess IfAdhemar v. JBertrand, 35 Beav. 19) ; but where the trustee is a cause, 
lunatic, a petition in lunacy is requisite ; see notes (m) and (o) to sect. 3, p. 65 ; 
Jeffryes v. Bryadale, 9 W. R. 428 ; Se Dawson, 6 N. R. 346. 

Vesting orders in a suit were made on motion in Maekmnie v. Mackenzie, Seton, 
525, where a previous order appointing new trustees had been made in a cause ; and 
see Se Solbrook's Will, 8 W. R. 3, where such order had been made on petition 
in a matter, and a subsequent vesting order was made on motion ; see, too, Skynner 
T. Felichet, 9 W. R. 191 ; and Fisher v. Eughes, 25 W. R. 528, where an order was 
made on motion for judgment in default of pleading. 

The petition, though presented in a suit, should be intituled in the Act [Gough Petition how 
V. Bage, W. N. (1871), 237 ; 25 L. T. 738 ; Be Law, 4 Beav. 509 ; EuntUy v. Glut- intituled. 
terbuck, W. N. (1872), 81) ; but see Seton, p. 544. 

As to amending an order, see Re Clinton, Jackson v. Slaney, W. N. (1882), 176 ; Amendment 
and Be Savage, 15 Ch. D. 557, where the names of some of the co-petitioners had of order, 
been used without their authority. 

XLIV. And be it enacted, that whenever any order shall be made Orders made 

under this Act, either by the Lord Chancellor, intrusted as aforesaid, oJchancery* 

or by the Court of Chancery, for the purpose of conveying or assign- founded on 

ing any lands, or for the purpose of releasing or disposing of any ™^j^^g*to'be 

contingent right, and such order shall be founded on an allegation of conclusive 

the personal incapacity of a trustee or mortgagee, or on an allegation ?Z ''"tt 

that a trustee or the heir or devisee of a mortgagee is out of the juris- contained in 

diction of the Court of Chancerv, or cannot be found, or that it is ^"^°^ *^®' 

. 1.1. gations. 

uncertain which of several trustees, or which of several devisees of a 

mortgagee, was the survivor, or whether the last trustee, or the heir 
or last surviving devisee of a mortgagee, be living or dead, or on an 
allegation that any trustee or mortgagee has died intestate without an 
heir, or has died and it is not known who is his heir or devisee, then 
in any of such cases the fact that the Lord Chancellor, intrusted as 
aforesaid, or the Court of Chancery, has made an order upon such an Order to be 
allegation, shall be conclusive evidence (c) of the matter so alleged in ""^g^gg^gf 
any court of law or equity upon any question as to the legal validity facts on 
of the order : Provided always, that nothing herein contained shall J^^°^ ^ "was 
prevent the Court of Chancery directing a re-conveyance or re-assign- 
ment of any lands conveyed or assigned by any order under this Act, 
or a re-disposition of any contingent right conveyed or disposed of by 
such order ; and it shall be lawful for the said Court to direct any of 
the parties to any suit concerning such lands or contingent right to 
pay any costs occasioned by the order under this Act, when the same 
shall appear to have been improperly obtained. 

(c) See ColUnson v. Collinson, 3 De G. M. & G. 409, 414. 



86 



TRUSTEE ACT, 1850. 



13 & HViot. 
0. 60, s. 45. 

Trustees of 
charities. 



Vesting order 
on appoint- 
ment of new 
charity 
trustees. 

No escheat of 
property held 
upon trust or 
mortgage. 



Eights of 
Crown to 

escheat. 



Trustee 



Act not to 
prevent 
escheat or 
forfeiture of 
beneficial 
interest. 



XLV. And be it enacted, that it shaU be lawful for tbe Lord Chan- 
cellor, intrusted as aforesaid, or tke Court of Chancery, to exercise the 
powers herein conferred, for the purpose of vesting any lands, stock, 
or chose in action in the trustee or trustees of any charity {d) or 
society, over which charity or society the said Court of Chancery* 
would have jurisdiction npon suit duly instituted, whether such trustee 
or trustees shall have been duly appointed by any power contained in 
any deed or instrument, or by the decree of the said Court of Chan- 
cery, or by order made upon a petition to the said Court under any 
statute authorising the said Court to make an order to that effect in a 
summary way upon petition. 

{d) New trustees of a charity having been appointed under the 16 & 17 Vict, 
c. 137, s. 28, a vesting order under this section was made in chambers (Se Daven- 
port's Charity, i De G. M. & 6r. 839) ; and see Re Lincoln Chapel, 1 Jur. N. S. 1011 ; 
3 W. R. 608. 

XLVI. And be it enacted, that no lands, stock, or chose in action 
vested in any person upon any trust or by way of mortgage, or any 
profits thereof, shall escheat or be forfeited to her Majesty, her heirs or 
successors, or to any corporation, lord or lady of a manor, or other 
person, by reason of the attainder or conviction for any offence of such 
trustee or mortgagee, but shall remain in such trustee or mortgagee, or 
survive to his or her co-trustee, or descend or vest in his or her repre- 
sentative, as if no such attainder or conviction had taken place (e). 

(«) This section is taken from 4 & 5 Will. 4, c. 23, s. 3. See now 33 & 34 Vict. 
0. 23 ; and as to the present law of escheat, see the Intestates Estates Act, 1884. 

Where an illegitimate mortgagee in fee devised her real and personal estate to ar 
trustee upon certain trusts and died without issue, the Court, tiie Crown offering 
no opposition, vested the legal estate in a purchaser, the mortgage-money having 
been paid off (Be Minchin, 2 W. R. 179). From a case of Bartletty. Bartlett, how- 
ever (cited in Inoe's Trustee Acts, 2nd ed. p. 91), it would seem that where an 
illegitimate testator devises estates to which he is beneficially entitled to a trustee 
who predeceases him and dies without issue, a vesting order cannot be made so as to 
defeat the rights of the Crown. 

By sect. 8 of the Extension Act, p. 92, post, the Court has power to appoint 
new trustees in lieu of persons convicted of felony. 

XL VII. And be it enacted, that nothing contained in this Act shall 
prevent the escheat or forfeiture of any lands or personal estate vested 
in any such trustee or mortgagee, so far as relates to any beneficial 
interest therein of any such trustee or mortgagee, but such lands or 
personal estate, so far as relates to any such beneficial interest, shall be 
recoverable in the same manner as if this Act had not passed (_/). 

(/) This section is taken from 4 & 5 Will. 4, e. 23, s. 5. See now 33 & 34 Vict, 
u. 23 ; and as to escheat, the Intestates Estates Act, 1884. 



Money of 
infants and 



XLYIII. And be it enacted, that where any infant or person of 
. unsound mind shall be entitled to any money payable in discharge of 
unsound mind any lands, stock, or chose in action conveyed, assigned, or transferred 
*° ^® P^'^ under this Act, it shall be lawful for the person by whom such money 
is payable to pay the same into the Bank of England, in the name 
and with the privity of the Accountant-General {g), in trust in any 



TEUSTEE ACT, 1850. 87 

cause then depending concerning such, money, or, i£ there shall he no 13 & 14 Viot. 
such cause, to the credit of such infant or person of unsound mind, °' ' ^' 



subject to the order or disposition of the said Court ; and it shall be 
lawful for the said Court, upon petition in a summary way, to order 
any money so paid to be invested in the public funds, and to order pay- 
ment or distribution thereof, or payment of the dividends thereof, as 
to the said Court shall seem reasonable ; and every cashier of the 
Bank of England who shall receive any such money is hereby required 
to give to the person paying the same a receipt for such money, and 
such receipt shall be an effectual discharge for the money therein 
respectively expressed to have been received (A). 

(ff) The payment is now made to the account of the Paymaster-G-eneral. 
(A) See Se Sparks, 6 Ch. D. 361. 

XLIX. And be it enacted, that where in any suit commenced or to Court may 
be conunenced in the Court of Chancery, it shall be made to appear to in the absence 
the Coujt by affidavit that diligent search and inquiry has been made o^ a trustee, 
after any person made a defendant, who is only a trustee, to serve him 
with the process of the Court, and that he cannot be found, it shall be 
lawful for the said Court to hear and determine such cause, and to 
make such absolute decree therein against every person who shall 
appear to them to be only a trustee, and not otherwise concerned in 
interest in the matter in question, in such and the same manner as if 
such trustee had been duly served with the process of the Court, and 
had appeared and filed his answer thereto, and had also appeared by 
his counsel and solicitor at the hearing of such cause (i) : Provided 
always, that no such decree shall bind, affect, or in any wise prejudice 
any person against whom the same shall be made, without service of 
process upon him as aforesaid, his heirs, executors, or administrators, 
for or in respect of any estate, right, or interest which such person shall 
have at the time of making such decree for his own use or benefit, or 
otherwise than as a trustee as aforesaid. 

(t) The Court under this section ordered a cause to be certified as fit for hearing 
though a defendant trustee could not be found, and had not appeared ( Weathead v. 
Sale, 6 W. E. 52; Surrelly. Maxwell, 26 L. T. 655]. 

[Sect. 50 was repealed by Statute Law Eeyision Act, 1875.] 

LI. And be it enacted, that the Lord Chancellor, intrusted as afore- Costs may be 
said, and the Court of Chancery, may order the costs and expenses of ^he estate. 
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 or produce thereof, in respect of which the same 
respectively shall be made, or in such manner as the said Lord Chan- 
cellor or Court shall think proper (k). 

Ik) When a bill was filed for the appointment of a new trustee in a case where a 9°f^ of cause 
petition might have been presented, the plaintiff was held to be liable for the addi- instituted 
tional costs {Thomas v. Walker, 18 Beav. 521). unnecessarily. 

• The costs of applications in the matter of a trust, whether occasioned by the Costs of 

applications. 



TRUSTEE ACT, 1850. 



13 & 14 Vict, 
c. 60, s. 51. 

Charged on 
trust property 
if for benefit 
of trust 
property. 



Costs of 
appearance of 
bankrupt 
trustee. 

Costs of 
vesting order — 

(1) Aste- 
tween ven- 
dor's estate 
and pur- 
chaser ; 

(2) as between 
mortgagee's 
estate and 
mortgagor 
redeeming. 
Wbere 
mortgagee 
lunatic. 



Costs of 
respondent 
trustees in 
case of 
miacondmst. 



Commission 
concerning 
person of 
unsound 
mind. 



lunacy {Se Fulham, IS Jur. 69), infancy {Ex parte Cant, lOVes. 554), or bankruptcy 
[Ex parte Painter, 2 Deac. & Ch. 584), of a trustee, must be borne by the cestui qtie 
trust or the trust estate, according as the application is for the benefit of the applicant 
solely, or generally for the benefit of the estate ; see Carter v. Sebright, 26 Beav. 
374 ; Re Brackenhury, 10 Eq. 45 ; Re Fellows, 2 Jur. N. S. 62. ' In Ex pa/rte Dalies, 
16 Jur. 882, V.-C. Parker, upon appointing a new trustee and making a vesting 
order under the Act, by consent ordered the new trustee to pay the costs of the 
proceedings, and directed that such costs, with interest thereon at il. per cent, 
should form a charge on the inheritance ; and see Re Crahtree, 14 W. E. 497, where 
costs were directed to be raised by mortgage to be settled by the Court. Where 
new trustees of two funds were appointed, the costs were borne rateably (Re Grant, 
2 J. & H. 764). As to costs where two petitions are presented, see Re Rring, 42 
L. J. Ch. 473 ; 28 L. T. 467. 

When a trustee is served and appears on an application for appointment of a new 
.trustee, he will, except incase of misconduct [see Ex parte Harris, 11 L. J. Bkcy. 16), 
be allowed his costs ; see Turner \. Mullineux, 9 W. E. 252 ; 3 Ii. T. 687, where 
costs as between solicitor and client were given to a bankrupt trustee. Eor cases 
where it was held that infant respondents need not be ferved, see p. 84. 

The costs of an application for a vesting order as between vendor and purchaser, 
occasioned by the vendor leaving an infant heir or devisee, must be borne by the 
vendor's estate [Heard v. Cuthbert, 1 Ir. Ch. Rep. 369 ; Bradley v. Munton, 16 Beav. 
294 ; Ayles v. Cox, 17 Beav. 584 (where the sale was under a decree) ; Re South 
Wales Ry. Co., 14 Beav. 418) ; see, however. Re Nash, 4 W. R. Ill ; Re Liverpool 
Improvement Act, 5 Eq. 282. 

"The costs of an application for a vesting order as between a mortgagor paying off 
the mortgage debt and the mortgagee, occasioned by the mortgagee leaving an heir 
who cannot be found, or is lunatic, or a bare trustee who is lunatic [Re Lewes, 1 M. 
cS: G. 435), are payable by the mortgagor [Re Marrow, Cr. & Ph. 142 ; Ex parte 
Ommaney, 10 Sim. 298 ; King v. Smith, 6 Hare, 473 ; Re Jones, 2 De G. F. & J. 554 ; 
Re Stuart, 4 De G-. & J. 317) ; but if the application was occasioned by the mortgagee 
himself becoming lunatic, it should be made by the committee of the lunatic's 
estate, and the committee will pay the costs out of the lunatic's estate [Re Rowley, 
1 N. R. 251 ; 1 De G. J. & S. 417 ; Re Viall, 8 De G. M. & G. 439 ; Re Wheeler, 1 
De G. M. & G. 435 ; Ex parte Richards, 1 J. & W. 264 ; Re Townscnd, 2 Ph. 348 ; Re 
Thomas, 22 L. J. Ch. 858 ; Re Jones, 2 Ch. D. 70). The mortgagor, if he appears, 
vrill not get his costs [Re Fhillips, 4 Ch. 629). If, however, the lunatic mortgagee 
appears on the face of the mortgage-deed to be only a trustee, the trust estate pays 
the costs [Re Jones ; and see Re Lewes, 1 M. & G. 23 ; Re Townsend, ibid. 686). And 
if the mortgagor makes the application in a case where the committee of the lunatic 
has not declined to act, he must bear the costs [Re Wheeler, 1 De G. M. & G. 435). 

In Re Sparks, 6 Ch. D. 361 ; 25 W. R. 869, it was held that the Court has no 
jurisdiction to order the costs of a vesting order occasioned by the lunacy of the 
mortgagee to be paid out of the mortgage debt, and that each party must bear his 
own costs ; this case overrules Re Riddle, 23 L. J. Ch. 23. 

It was held in Re Primrose, 23 Beav. 590, that the Court has no jurisdiction 
under the Act to order a respondent to pay the costs of an appUeation occasioned 
by his own misconduct ; and it seems very doubtful whether the Court has any 
such jurisdiction even now, notwithstanding the Jud. Acts and Ord. LXV. r. 1, 
R. S. C. 1883 [Re Sarah Knight, 26 Ch. D. 82) ; but see the remarks on Re Primrose 
in Re Woodburn, 1 De G. & J. 346 ; and see also Re Adams, 12 Ch. D. 634 ; Re 
Wiseman, 18 W. R. 674 ; Re Wills, 12 W. R. 97 ; 9 Jur. N. S. 1225. The costs of 
appointing new trustees were ordered in a suit to be paid by trustees who improperly 
refused to retire ; see Legg v. Mackrell, 2 De G. F. & J. 551 ; Attorney-General v. 
Murdoch, 2 K. & J. 571 ; Grierson v. Aatle, 3 L. T. 288 ; King v. King, 1 De G. & J. 
663 ; Palairet v. Carew, 32 Beav. 564 ; Re Wiseman, 18 W. E. 574. But the Court 
can dismiss a, petition with costs (sect. 42), and wiU do so where the petition is 
needlessly presented [Re Gibbon, 30 W. R. 287 ; W. N. (1882), 12 ; Re Oakden, 26 
Sol. J. 563). In Richardson v. Grubb, 16 W. E. 176 (Ireland), it was decided that 
failing health, where the trusts were of a formal character only, was not a sufficient 
reason for a petition asking that they might be discharged, and the petitioner was 
disallowed his costs. Where a trustee on a petition to appoint new trustees dis- 
claims at the bar he will only be allowed costs as between party and party [Bulkeley 
V. Earl of Eglinton, 1 Jur. N. S. 994 ; and see Norway v. Norway, 2 M. & K. 278, 
overruling Sherratt v. Bentley, 1 R. & M. 655 ; and Legg v. Mackrell, ante). 

LII. And be it enacted, tliat upon any petition being presented 
undei this Act to the Lord Chancellor, intrusted as aforesaid, con- 
cerning a person of unsound mind, it shall be lawful for the said Lord 



TRUSTEE ACT, 1850. 89 

Chancellor, should he so think fit, to direct that a commission in the 13 & 14 Vict, 
nature of a writ de lunatico inquirendo shall issue concerning such "" ^°' °" ^^" 
person, and to postpone making any order upon such petition until a 
return shall have been made to such commission. 

Lni. And be it enacted, that upon any petition under this Act Suit may be 
being presented to the Lord Chancellor, intrusted as aforesaid, or to "^i^ected. 
the Court of Chancery, it shall be lawful for the said Lord Chancellor 
or the said Court of Chancery to postpone making any order upon 
such petition until the right of the petitioner or petitioners shall have 
been declared in a suit duly instituted for that purpose (1). 

(i) This section was acted on in ColUnson v. Collinson, 3 De G. M. & Gr. 409 ; JJc Cases where 
Burt, 9 Hare, 289 ; Se Carpenter, Kay, 418 ; Carpenter v. lord GhurohiU, 2 "W. E. suit directed. 
364 ; Me Weeding, 4 Jur. N. S. 707. 

LIV. And be it enacted, that the powers and authorities given by Powers of 

this Act to the Court of Chancery in England shall extend to aU lands '^""^ °* 

.and personal estate within the dominions, plantations, and colonies extenTto 

belonging to her Majesty (except Scotland) (m). property in 

the colonies. 
[m] Under this section a Testing' order was made as to lands in Canada (Re Lands in 
SchofleU, 24 L. T. (O. S.) 322 ; Re Groom, 11 L. T. 336). As to lands in Ireland, Canada 
see Re Davies, 3 Mac. & Gr. 278, where the Lord Chancellor held that an order could j , ,' 
not be made to vest such estates in a trustee appointed in the place of a lunatic ■"^^^*"'- 
trustee {see post, ss. 65, 56, 57). But when the cestui que trust was in England, and 
the surviving trustee in Ireland, V.-O. Kindersley made an order vesting lands 
situate in Ireland in a new trustee appointed by the Court [Re Hewitt, 6 W. R. 537) ; 
and in Re Lamotte, i Ch. D. 326, an order was made vesting land in Ireland. See 
also Re Taitt, W. N. (1870), 257. 

LY. And be it enacted, that the powers and authorities given by Powers riven 

this Act to the Court of Chancery in England shall and may be *° ^°"^' °* 

• 1 • Ti ■■ 11? , ■,-.-. Chancery 

exercised m like manner and are hereby given and extended to the may be 

Court of Chancery in Ireland with respect to all lands and personal exercised by 
,,.--11 that Court m 

estgite in Ireland. Ireland. 

LVI. And be it enacted, that the powers and authorities given by Powers 

this Act to the Lord Chancellor of Great Britain, intrusted as afore- °1 Lord 

Uhancellor 
said, shall extend to all lands and personal estate within any of the in Lunacy 

dominions, plantations, and colonies belong^g to her Majesty (except *° extend to 

Scotland and Ireland) (ra). the colonies. 

(«) Where one of two trustees of Irish railway stock became of unsound mind, 
an order was made appointing a person new trustee of the stock in his place, and 
directing such person to concur with the other trustee in transferring the stock {Re 
Modgson, H Ch. D. 888). 

LVII. And be it enacted, that the powers and authorities given by Powers 
this Act to the Lord Chancellor of Great Britain, intrusted as afore- ?t"'^°'^'^ii 
said, shall and may be exercised in like manner by and are hereby in Lunacy 
eiven to the Lord Chancellor of Ireland, intrusted as aforesaid, with ™^y \^ , 
respect to all lands and personal estate in Ireland. by Lord 

LYIII. And be it enacted, that in citing this Act in other Acts of ^lanoellor 
Parliament, and in legal instruments and in legal proceedings, it shall „, . . " 
be sufficient to use the expression " The Trustee Act, 1850." 

Sections 59 and 60 are repealed by the Statute Law Revision Act, 1875. 



90 TRUSTEE EXTENSION ACT, 1852. 



15 & 16 viot. TEUSTBE EXTENSION ACT, 1852. 

c. 55. 
15 & 16 VICT. Cap. 66. 

An Act to extend the provisions of the " Trmtee Act, 1850." 

[30tli June, 1852.] 

Wheeeas it is expedient to extend tlie provisions of the Trustee 
Act, 1850 : Be it therefore enacted, &c. : 
Court of I. That when any decree or order (o) shall have been made by any 

SiS^a^'oXr Ciourt of Equity directing the sale of any lands for any purpose what- 
forvesting the ever (J), every person seised or possessed of such land, or entitled to 
of oonveyante ^ contingent right therein, being a party to the suit or proceeding in 
by a party to which such decree or order shall have been made, and bound thereby 
a'deoree or^"^ Or being otherwise bound by such decree or order, shall be deemed to 
order for sale, 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 (c), if the said Court shall 
think it expedient for the purpose of carrying such sale iuto 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 as if such person so seised or possessed or entitled had 
been free from all disability, and had duly executed aU proper con- 
veyances and assignments of such lands for such estate {d). 

Section retro- (a) This section applies retrospectively to a decree made before the passing of 
speotive. the Act [Wake v. Wake, 17 Jur. 645). 

(b) This removes the difficulty which arose in Weston v. Filer, 5 De Gr. & S. 608 ; 
the 29th section of the Trustee Act, 1860, only applied to a sale for payment of 
debts. 

(c) Now the Chancery Division of the High Court (Jud. Act, 1873, s. 34). 

(d) The order was made in the suit without a petition where one of the vendors 
was a lunatic (Earrison v. Smith, 17 W. B. 646). The section applies to sales 
under the Partition Acts, 1868 and 1876, and is not limited to cases of persons 
under disability (Beckett v. Sutton, 19 Ch. D. 646). The application under this 
section is by summons (Ord. LV. r. 2 (8),. infra). 

Power to II. That sections numbered 17 and 18 in the Queen's Printer's copy 

Sr vesting ^^ *^® Trustee Act, 1850, be repealed; and in every case where any 
the estate, on person is or shall be jointly or solely seised or possessed of any lands 
retusai or ^^ entitled to a contingent right therein upon any trust, and a demand 
trustee to shall have been made upon such trustee by a person entitled to 
convey or require a conveyance or assignment of such lands, or a duly autho- 
rised agent of such last-mentioned person, requiring such trustee to 
convey or assign the same, or to release such contingent right, it 
shall be lawful for the Court of Chancery, if the said Court shall be 
satisfied that such trustee has wUfuUy refused or neglected to convey 
or assign the said lands for the space of twenty-eight days after such 
demand, to make an order vesting such lands in such person in such 
manner and for such estate as the Court shall direct ; or releasing such 



TRUSTEE EXTENSION ACT, 1852. gj 

contingent right in suoh manner as the Court shall direct ; and the 15 & 16 Viot, 
said order shall have the same effect as if the trustee had duly exe- "■ ^^' °- ^- 
Cttted a conveyance or assignment of the lands, or a release of such 
right, in the same manner and for the same estate (e). 

(e) See sect. 23 of the Act of 1850, p. 73, ante, and notes. The refusing trustee Trustee need 
ne^ not be served [Me Crowe, 13 Eq. 26). not be served. 

A vesting order was made under this section to defeat an attempt at extortion on VfiaHnD- 
T rl^.,°* S^i?"?**^ ^^' O'lX^nell, 19 W.E. 522) ; and see KnigU v. Knight, 14 oXs 
L.T.,161;W.N. (1866), 114;iJse™2,™«,W.N. (1879), 52;27W.E. 534 T^^' 

The section was acted on -where a mortgagor of copyholds who had covenanted ■''Mortgagor ot 
to surrender neglected to do so VRe Crowe, 13 Eq. 26) cop j holds 

I, > 1 / refusing to 

m. That -when any infant shall be solely entitled to any stock upon p 
any trust, it shall be lawful for the Court of Chancery to make an make an order 
order vesting in any person or persons the right to transfer such stock, 1°"^ *^® i-cwis- 
or to receive the dividends or income thereof ; and when any infant of dividends 
shall be entitled jointly with any other person or persons to any stock °* «*°'''^i'i 
upon^. any trust, it shall fee lawful for the said Court to make an order infant 
vesting the right to transfer such stock, or to receive the dividends or t''"stee. 
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 (/). 

(/) This section was passed to meet the case of Cramer v. Cramer, 5 De Gr. & S. 
312 ; 16 Jur. 831. Eor cases under the section, see Sanders v. Earner, 25 Beav. 467 ; 
6 W. E. 476 ; Sevoy v. Devoy, 3 8m. & G. 403 ; 3 Jur. N. S. 79 ; Stone v. Stone, 3 
Jur. N. S. 708 ; Rives v. Sives, W. N. (1866), J44 ; Re Westwood, 6 N. E. 61, 316 ; 
and see Gardner v. Cowles, 3 Ch. D. 304 ; 24 W. E. 920, where the infant was the 
sole beneficial owner of the stock. In Re Morgan, Seton, 516, the right was vested 
in the infant's guardian. Where stock to which an infant was beneficially entitled 
had been invested in the joint names of himself and another person, the Couii; made 
an order imder this section vesting the right to transfer the stock in the other 
person (Re Sarwood, 20^:!h. D. 636). 

IV. That where any person shall neglect or refuse to transfer any On neglect to 
stock (jr), or to receive the dividends or income thereof, or to sue for or transfer stock 
recover any chose in action, or any interest in respect thereof, for the order may be 
space of twenty-eight days next after an order of the Court of ^^^ vesting 
Chancery for that purpose shall have been served upon him (h) it shall transfer in 
be lawful for the Court of Chancery to make an order vesting all the such person 
right of such person to transfer such stock, or to receive the dividends gjiaU appoint, 
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 (»'). 

(g) See sect. 23 of the former Act, p. 73, amte. Vesting order 

The order under this section may, it seems, be made on motion [Re Solbrook, of stock. 
8 W. E. 3 ; 5 Jur. N. S. 1333 ; Skynner v. Feliehet, 9 W. E. 191). Order may 

{/() The service should be personal, unless the order can be made under section 23 ^^ made on 
of the principal Act [CoUs v. Benhow, W. N. (1873), 60). motion 

(i) An order may be made although the petition for the order which has not been 
complied with has not been served on the recalcitrant person [Re Moimt, 24 L. T. 
290). 

v. When any stock shall be standing in the sole name of a deceased On like 
person, and his personal representative shall refuse or neglect to executor^ 



92 



TRUSTEE EXTENSION ACT, 1852. 



15 & 16 Vict, 
u. 55, s. 5. 

similar order 
may be made. 



Bank of Eng- 
land and com- 
panies to 
comply with 
orders. 

(See SB. 20 and 
26 of Trustee 
Act, 1850.) 



Indemnity to 
Bank and 
companies so 
obeying. 



transfer such stock or receive the dividendB or income thereof for the 
space of twenty-eight days next after an order of the Coiirt 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 trans- 
fer such stock, or to receive the dividends or income thereof, in any 
person or persons whom the said Court may appoint. 

VI. "When any order being or purporting to be under this Act or 
under the Trustee Act, 1850, shall be made by the Lord Chancellor, 
intrusted as aforesaid, or by the Court of Chancery, vesting the right 
to any stock, or vesting the right to transfer any stock, or vesting the 
right to call for the transfer of any stock, in any person or persons, in 
every such case the legal right to transfer such stock shall vest accord- 
ingly (k) ; and the person or persons so appointed shall be authorised 
and empowered to execute aU deeds and powers of attorney, and to 
perform all acts relating to the transfer of such stock into his or their 
own name or names, or otherwise, to the extent and in conformity 
with the terms of the order ; and the Bank of England and aU com- 
panies and associations whatever, and all persons, shall be equally 
bound and compellable to comply with the requisitions of such person 
or persons so appointed as aforesaid, to the extent and in conformity 
with the terms of such order, as the said Bank of England, or such 
companies, associations, or persons would have been bound and com- 
pellable to comply with the reqtiisitions of the person in whose place 
such appointment shall have been made. 

(A) This enactment was rendered necessary by Se Smyth, 4 De Gr. & Sra. 499, 
which decided that the former Act only gave the right to call for a transfer of the 
stock. 

VII. That every order made or to be made, being or purporting to 
be made under this or the Trustee Act, 1850, by the Lord Chancellor, 
intrusted as aforesaid, or by the Court of Chancery, and duly passed 
and entered, shall be a complete indemnity to the Bank of England, 
and aU companies and associations whatsoever, and all persons, for 
any act done pursuant thereto ; and it shall not be necessary for the 
Bank of England, or such company or association, or person to inquire 
concerning the propriety of such order, or whether the Lord Chan- 
cellor, intrusted as aforesaid, or the Court of Chancery had jurisdiction 
to make the same {kk). 

[kk) Notwithstanding this section the Bank is justified, where it considers an 
erroneous or defective order has been made, in requiring die point to be brought 
before the Court for reconsideration {Re Westwood, 6 N. R. 316 ; Frodaham v. Frod- 
sham, 15 Ch. D. 317). Where, before the fund could be transferred into the names 
of new trustees appointed by the Court, one of them died, the order was amended 
by inserting the words " or the survivor of Ihem " (Ee Glemville, W. N. (1877), 248). 



Power to VIII. That when any person is or shall be jointly or solely seised 

tnwtees ^^ °^ possessed of any lands or entitled to any stock upon any trust, and 
Ueu of persons such person has been or shall be convicted of felony, it shall be lawful 
convicted of ^^^ ^-^^^ Court of Chancery, upon proof of such conviction, to appoint 



TRUSTEE EXTENSION ACT, 1852. 93 

any person to be a trustee in tlie place of sncli convict, and to make 15 & 16 Vict, 
an order for vesting such lands, or the right to transfer such stock, ' " " 

and to receive the dividends or income thereof, in such person to he so 
appointed trustee ; and such order shall have -the same effect as to 
lands as if the convict trustee had been free from any disability, and 
had duly executed a conveyance or assignment of his estate and 
interest in the same (1). 

{I) See note (e), ante, p. 86, as to escheat of trust property. 

IX. That in aU cases where it shall be expedient to appoint a new Power to the 

trustee, and it shall be found inexpedient, difficult or impracticable so *-'°™^? *° 

. . r ' r appoint new 

to do without the assistance of the Court of Chancery, it shall be trustees 

lawful for the said Court to make an order appointinar a new trustee yliere there 

'■•■ ° IS no existing 

or new trustees, whether there be any existmg trustee or not at the trustee. 

time of making such order (m). 

{>») See notes to s. 32 of the Aot of 1850, ante, p. 79. 

The Court sitting in lunacy has power under this section to appoint new trustees 
of the win cf a deceased lunatic, where the trustees appointed by him have died in 
his lifetime, for the purpose of gettiiag rid of the funds standing to the credit of 
the lunacy (Se Orde, 24 Ch. D. 271). 

X. In every case in. which the Lord Chancellor, intrusted as afore- Chancellor 
said, has jurisdiction under this Act, or the Trustee Act, 1850, to ™ayinake 
order a conveyance or transfer of land or stock, or to make a vesting appointment 
order, it shall be lawful for him also to make an order appointing a °^-^^f^' 
new trustee or new trustees in like manner as the Court of Chancery being neees- 
may do in like cases, without its being necessary that the order should ^f''^,*??* ** 
be made in Chancery as well as in lunacy, or be passed and entered made in 

by the Eegistrar of the Court of Chancery (n). Chancery, &e. 

(») See Re WaugJi, 2 De Gr. M. & G. 279 ; and note (o) to the 3rd section of the Jurisdiction 
former Aot, ante, p. 65. "i lunacy. 

XI. That all the jurisdiction conferred by this Act, on the Lord As to powers 
Chancellor, intrusted by virtue of the Queen's sign manual with the int^usted^ 
care of the persons and estates of lunatics, shaU and may be had, with the care 
exercised, and performed by the person or persons for the time being 
intrusted as aforesaid (o). 

(o) See the Judicature Act, 1875, sect. 7, poit. 

Xn. That this Act shall be read and construed according to the Act to he 
definitions and interpretations contained in the second section of the oonstraed as 
Trustee Act, 1850, and the provisions of the said last-mentioned Act Trustee Aot, 
(except so far as the same are altered by or inconsistent with this Act) 1850. 
shall extend and apply to the cases provided for by this Act, in the 
same way as if this Act had been incorporated with and had formed 
part of the said Trustee Act, 1850. 



94 TRUSTEE EXTENSION ACT, 1852. 

15 & 16 Vict. Xin. That every order«to be made under the Trustee Act, 1850, or 
"• ' "• ^^' this Act, which shall have the effect of a conveyance or assignment of 
All orders any lands, or a transfer of any such stock as can only he transferred 
Tnwtee'iot ^^ stamped deed, shall be chargeable with the like amount of stamp 
1850, or this duty as it would have been chargeable with if it had been a deed 
ohareeable executed by the person or persons seised or possessed of such lands or 
■with the same entitled to such stock ; and every such order shall be duly stamped for 
deedi'of"*^ ^ denoting the payment of the said duty {p). 

uvey oe. ^^^ ^^ ^ ^-^ stamp duties, see the Stamp Act, 1870 ; Madgett v. Commissioners of 

Inland Revenue, 3 Ex. D. 46. No order will be passed by the registrar until it has 
been duly stamped as required by this section (DanieU, 2129). 



16 & 17 Vict. CHAEITABLE TRUSTS ACT, 1853 



c. 137. 



16 & 17 VICT. Cap. 137, s. 28. 

An Act for the letter Administration of Charitable Trusts. 

[20th Aug. 1853.] 

Jurisdiction XXVIII. Where the appointment or removal of any trustee (a) or 

where'inoome ^^^ other relief, order, or direction relating to any charity of which 
of charities the gross annual income for the time being exceeds thirty pounds 
ceed ^0* ^to ^^ ^^ considered desirable, and such appointment, removal, or other 
appoint or re- relief, order, or direction might now be made' or given by the Court of 
moTO trustees Qjj^ancery, in respect either of its ordinary or its special or statutory 
other relief, jurisdiction, or by the Lord Chancellor intrusted with the care and 
commitment of the custody of lunatics, it shall be lawful for any per- 
son authorised in this behalf by the order or certificate of the said 
Board (5) or for the Attorney-General to make application (without 
any information, bUl, or petition) to the Master of the EoUs, or one 
of the Vice-Chancellors (c) sitting at chambers, for such order, direc- 
tion, or relief as the nature of the case may require ; and the Master 
of the Eolls or the Vice-Chancellor (o) to whom any such appKcation 
shall be made, shall and may proceed upon and dispose of such appli- 
cation ia chambers, save where he may think fit otherwise to direct, 
and shall and may have and exercise thereupon all such jurisdiction, 
power, and authority, and make such orders, and give such directions 
in relation to the matter of such application as might now be exer- 
cised, made, or given by the Court of Chancery, or by the Lord Chan- 
cellor, intrusted as aforesaid, in a suit regularly instituted, or upon 
petition as the case may require ; and the Master of the Eolls and Vice- 
Ohancellors (c) respectively shall, in relation to such applications as 



CHARITABLE TRUSTS ACT, 1853. 95 

aforesaid, and the proceedings thereon (subject to any rules which 16 & 17 Vict. 
may be made by the Lord ChanceUor, with the advice and consent of °- •^^^' °" ^^' 
them or any two of them) have all such powers of directing matters to 
be heard in open Court, and of ordering what matters shall be heard 
and investigated by themselves and their chief clerks respectively, and 
such other powers and authorities as by the Act of the last session of 
Parliament, chapter eighty (rf), are vested in or authorised to be exer- 
cised by them at chambers, and the provisions of the said Act appli- 
cable to orders made by the Master of the EoUs or any of the Vice- 
Chancellors (c) at chambers, shall extend to aU orders so made under 
this Act : Provided always, that save as may be otherwise provided by 
any new rules to be made by the Lord Chancellor, with such advice 
and consent as aforesaid, the determinations of the Master of the 
Eolls and Vice-Chancellors (c) respectively, upon and in relation to 
such applications as aforesaid, shall not be subject to appeal in any 
case where the gross annual income of the charity does not exceed one 
hundred pounds : Provided also, that it shall be lawful for the Master 
of the EoUs or any Yice-Chancellor (c), where, under the circum- 
stances of any application as aforesaid, he may so see fit, to direct that 
for obtaining the relief, order, or direction sought for by such appli- 
cation, an information, biE or petition, as the case may require, shall 
be filed or presented and prosecuted as now by law req[uired, and to 
abstain from further proceeding on such application (e). 

{a) The jurisdiction to appoint new tmstees, on petition, under the Trustee Act, Trustee Act. 
is not taken away, though it is seldom exercised ; see note {7c), p. 79, ante. 

The district Courts of Bankruptcy and County Courts were given similar juris- Jurisdiction 
diction over charities with an income not exceeding SOL (s. 32) ; and now, by the of Bankruptcy 
Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136, s. 11), over charities With an and County 
income up to 501. Courts ; 

By the Act of 1860, sect. 2, a concurrent jurisdiction over charities is given to of Charitv 
the Charity Commissioners, as to charities with an income exceeding 501., on the Commis- 
appUcation of the majority of the trustees ; and as to charities with a less income, signers 
on the application of the Attorney- General, the trustees, or any person interested 
in the charity, or inhabiting the place where it is situate, unless they think the 
ease from some difficulty of law or fact, fitter for the adjudication of a Court. 

(b) I. e. the Charity Commissioners for England and Wales sitting as a Board (16 " The said 
& 17 Vict. c. 137, 8. 66). Board." 

if) The application is now made to a judge of the Chancery Division of the High Application 
Court (Judicature Act, 1873, ss. 34, 74). to whom ' 

(rf) The Act here referred to is the Master in Chancery Abolition Act, 1852, made, 
most of which is now repealed. 15 & 16 V t 

(«) The application under the section is by summons in chambers (Ord. LV. „ » 
r. 13, R. S. C. 1883, infra). As to appealing from an order, see Ord. LV. r. 14, "' 
infra; and as to fees and costs, see Ord. LXV. rr. 24, 25, infra. Proceedings. 



96 



INFANTS' SETTLEMENT ACT. 



18 & 19 Viot. 
c. 43. 



Settlements 
by infants 
with the 
approbation 
of the Court. 



Duty of Court 
under this 
Act. 



Draft how 
settled. 



Keference to 
chambers. 



What clauses 
inserted in 
settlement. 



Settlement 
made out of 
Court. 

Post-nuptial 
settlement. 



INFANTS' SETTLEMENT ACT. 

18 & 19 VIGT. Cap. 43. 

An Act to enable Infants, with the Approbation of the Court of 
Chancery, to make binding Settlements of their Real and Per- 
sonal Estate on Marriage. [2nd July, 1855.] 

Whereas great inconveniences and disadvantages arise in conse- 
quence of persons wlio marry during minority being incapable of 
making binding settlements of their property: Por remedy whereof 
be it enacted, &c., as follows : 

I. Prom and after the passing of this Act it shall be lawful for 
every infant upon or in contemplation of his or her marriage, with the 
sanction of the Court of Chancery (a), to make a valid and binding 
settlement (J) or contract for a settlement of aU or any part of his or 
her property, or property over which he or she has any power of ap- 
pointment, whether real or personal, and whether in possession, rever- 
sion, remainder, or expectancy ; and every conveyance, appointment, 
and assignment of such real or personal estate, or contract to make 
a conveyance, appointment, or assignment thereof, executed by such 
infant, with the approbation of the said Court, for the purpose of 
giving effect to such settlement, shall be as valid and ejffectual as if 
the person executing the same were of the full age of twenty-one 
years : Provided always, that this enactment shall not extend to powers 
of which it is expressly declared that they shall not be exercised by an 
infant. 

(a) Now the Chancery Division of the High Court (Jud. Act, 1873, s. 34 (2), 
infra). 

(J) The Act did not impose on the Court any other duty than that of looking to 
the propriety of the settlement ; and consequently, the propriety of the marriage 
itself is not a question for its consideration, though of course ' ' what in each case 
may be a proper settlement must sometimes lead to an inquiry as to all the circum- 
stances connected with the" marriage " [Ee Dalton, 6 De Gr. M. & Gr. 201 ; 2 Jur. 
N. S. 1077, overruling S. C. 3 Sm. & Gr. 331). See, however, Se Strong, 2 Jur. 
N. S. 1241 ; 26 L. J. Ch. 64. 

See as to the employment of the conveyancing counsel, Re Williams, 8 W. R. 678 ; 
6 Jur. N. S. 1064. Where the infant was a ward of Court in a suit, two petitions, 
were presented, the first to obtain an order for a strict settlement, and the second 
to sanction the settlement when prepared [Fowell v. Oakley, 34 Beav. 576) ; and see 
Se Yates, 7 W. R. 711. 

Where a female infant's fortune was very considerable, the Court referred the 
whole matter to chambers {He Olive, 11 W. E. 819) ; but under special circumstances 
the reference to chambers was dispensed with {Ex parte Smith, 22 W. E. 294). See 
now note [d] to sect. 3. 

The Master of the Rolls refused to allow a clause providing that, in the event of 
any person professing the Roman Catholic religion becoming entitled, he should 
forfeit his interest under the settlement (Re Williame). But the insertion of the 
usual name and arms clause was permitted {Hid.). For the form of settlement 
adopted when a man married an infant ward of Court in defiance of am order of 
the Court, see Se Sampson,^ 25 Ch. D. 482 ; 63 L. J. Ch. 457. 

The Court has no jurisdiction under this Act to approve a settlement of an infant's 
property originally made without its concurrence {per V.-C. Stuart in Se Fuller's 
Settlement, Feb. 10, 1860). 

The Act extends to post-nuptial settlements {Se Sampson; Fowellv. Oakley, 34 
Beav. 676 ; and see Se Hoare, 11 W. R. 181). But the Court has no i\irisdiction 



INFANTS' SETTLEMENT ACT. 97 

over the property of an infant, not a ward of Court, wlio marries after she is of an 18 & 19 Viot. 
age to contract marriage (ije Potter, 1 Eq. 484). o. 43. 

Proceedings commenced with respect to an infant under the Act in no way pre- 

vent the payment out to the infant when of age, if no settlement has been made 
(Sams V. Cronin, 22 W. E. 204). 

n. Provided always, tliat in case any appointment under a power In case infant 
of appointment, or any disentailing assurance, shall have'been executed ^^l ^point- 
by any infant tenant in tail under the provisions of tMs Act, and such ment, &o., to 
infant shaU afterwards die under age, such appointment or disentail- ® ^°* ' 
ing assurance shall thereupon become absolutely void. 

m. The sanction of the Court of Chancery (c) to any such settle- The sanction 
ment or contract for a settlement may be given, upon petition {d) pre- of chancery 
sented by the infant or his or her guardian (e), in a summary way, to be given 
without the institution of a suit; and if there be no guardian, the ^^P"^ P6*i*^°°-^ 
Coxirt may require a guardian to be appointed or not, as it shall think 
fit ; and the Court also may, if it shall think fit, require that any 
person interested or appearing to be interested in the property should 
be served with notice of such petition (/). 

(e) Now the Chancery Division of the High Court (Jud. Act, 1873, s. 34 (2), 
infra). 

{d) The application is now made by simmions (Ord. LV. r. 2 (10), infra). A Application 
petition was necessary (under the former practice), although a suit had been insti- is now by 
tnted (PearefA v. Marriott, W. N. (1866), 48). summons. 

(e) In Se Strong, 26 L. J. Ch. 64 ; 2 Jur. N. S. 1241, L. J. Knight Bruce thought Guardian 
that an affidavit of the respectability of the person who acted as guardian ought to petitioning, 
be produced. The application must not be by a next friend, and a petition pre- 
sented by a next friend without the infant's concurrence was dismissed with costs. 
(Se Potter, 7 Eq. 484 ; but see Wortham v. Pemberton, 1 De Gr. & Sm. 644). 

(/ ) As to the evidence required on an application xmder the Act, see Ord. LV. Evidence, 
r. 26, infra. 

IV. Provided always, that nothing in this Act contained shall apply Not to apply 

to any male infant under the age of twenty years, or to any female to™ales under 

infant under the age of seventeen years {g). females under 

17 years of 
(a) Evidence must be produced to show the age of the infant (Ord. LV. r. 26, aee 
R. S. C, infra). ^ 



CUSTODY OP INFANTS ACT. 36 & 37 vict. 

c. 12. 



36 & 37 VICT. Cap. 12. 

An Act to amend the Law as to the Custody of Infants, 

[24th April, 1873.] 

Wheeeas it is expedient further to amend the law relating to the 
custody of iofants {a). 

{a) See 3 & 4 Vict. c. 90, which gives the Court of Chancery jurisdiction to assign Infant felon, 
the care of any infant convicted of felony to a voluntary guardian. 

M. H 



CUSTODY OF INFANTS ACT. 



36 & 37 Vict. 
0. 12, s. 1. 

Order that 
mother may 
have access to 
and custody of 
infant imder 
16 years. 



The Court. 

Married 
woman may 
petition alone. 

Principles on 
■which JTiris- 
diction exer- 
cised. 



Father' Bright 
to custody. 



Education of 
infants. 



Illegitimate 
child. 

Variation of 
order giving 
custody to 
mother. 



Be it therefore enacted, &o., as follows : — 

I. Prom and after the passing of this Act it shall he lawful for the 
High Court of Chancery (S) in England or in Ireland respectively, 
upon healing the petition by her next friend (c) of the mother of any 
infant or infants under sixteen years of age, to order that the peti- 
tioner shall have access to such infant or infants at such times and 
subject to such regulations as the Court shall deem proper, or to order 
that such infant or infants shall be 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 be 
subject to such regulations as regards access by the father or guardian 
of such infant or infants, and otherwise, as the said Court shall deem 
proper {d), 

(J) Now the Chancery Division of the High Court of Justice (Jud. Act, 1873, 
ES. 33, 31). 

(c) Having regard to the provisions of the Married "Women's Property Act, 1882, 
it would appear that a next friend is no longer required; see the Act, infra. 
The mother may by leave petition in formd pauperis {Me Zewin, W. N. (1884), 224). 
. [d] The effect of this section is to give the Court an absolute discretionary power 
as to the custody of the infant on the application of the mother ; but in exercising 
this jurisdiction the Court takes into consideration three matters — the paternal 
right, the marital duty, and the interests of the infant {Se Tat/lor, 4 Ch. D. 157; 
25 W. E. 69 ; Se Eldertm, 25 Ch. D. 220 ; 32 W. R. 227). Where by a covenant 
in a separation deed executed after the passing of the Act (see sect. 2, infra), the 
father had agreed that his infant daughter should remain in his wife's custody 
during eleven months in each year, but she held atheistical opinions, and had pub- 
lished and circulated an obscene book, and refused to allow the child to receive any 
religious instruction, the child was removed from the custody of the mother {Se 
Besant, 11 Ch. D. 608 ; and see Besant v. Wood, 12 Ch. D. 605). As to a breach of 
the marital duty by the father, see Se Elderton. The Court wiU look at all the 
surrounding circumstances before it will remove a female infant of tender years 
from thejsjistody of the mother, and other relations, whose conduct with regard to 
the child is imimpeached, and place her xmder the control of the father {fie Ethel 
Brown, 13 Q. B. D. 614). 

As to the general right of a father to the custody of hia children, and his corre- 
sponding obligations, and the jurisdiction of the Court to remove the children from his 
care if he neglects his duties, or in consequence of his profligacy and immoraUty, see 
note to Eyre v. Countess of Shaftesbury, 2 "W. & T. Leading Cases ; Swift v. Swift, 
34 Beav. 266 ; Me Kaye, 1 Ch. 387 ; Andrews v. Suit, 8 Ch. 622 ; WelUsky v. Buke 
of Beaufort, 2 Euss. 1 ; Me Flomley, 47 L. T. 283 ; Be Agar-Ellis, 24 Ch. D. 317. 

See generally for the principles of the Court as to guardianship and religious 
education of infants, Awstm v. Austin, 34 Beav. 257 ; on app. 13 W. E. 761 ; Me 
Newbery, 1 Eq. 431 ; 1 Ch. 263 ; Nugmt^. Yetzera, 2 Eq. 704 ; Me Kaye, 1 Ch. 387 ; 
Me Agar-Ellis, 10 Ch. D. 49 ; Me Clarice, 21 Ch. D. 817. 

As to the right of the mother to the custody of an illegitimate child, see M. t. 
Nash, 10 Q. B. D. 454. 

Where an order is made giving the custody to the mother " until further order," 
an application to vary the order by reason of something subsequent to its date 
should be made, not by way of appeal, but by motion before ttie judge of first 
instance ; and such a motion can be made by the respondent to the originS petition. 
The provision in the section, that the application shaUibe made by tiie mother, 
applies only to the original petition [Me Molt, 16 Ch. D. 115). 



In case of II. No agreement contained in any separation deed made between 

de^aTbetween *^® *^*^®^ ^'^^ mother of an infant or infants shall be held to be 
father and 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 ; 



mother. 



CUSTODY OF INFANTS ACT. 99 

Provided always, that no Court shall enforce any such, agreement if 36 & 37 Vict, 
the Court shall he of opinion that it -will not he for the benefit of the "' '' ^' ' 
infant or infants to give effect thereto (e). 

(e) This enactment was rendered necessary by such cases as Vansiitart r. Van- 
sittart, 2 De Gr. & J. 249, and the other cases referred to in SamiUon v. Sector, 
6 Ch. 701. See JRe Sesant, 11 Ch. D. 608 ; Besant v. Wood, 12 Oh. D. 605, cited in 
note (<2) to 8. 1. 

in. The Act of the second and third Victoria, chapter fifty-four, Repeal of 
iatituled " An Act to amend the law relating to the custody of in- ^ g^^ ^° ' 
fonts," shall he and is hereby repealed (/). 

(/) For the practice under this Act, see 2 Dan. Ch. Pr., 5th ed., pp. 1926, 1927. 



LAW OF PEOPEETY AND TRUSTEES EELIEE 22&23Vict. 

c. 35. 

AMENDMENT ACT. 

22 & 23 VICT. Cap. 35. 

An Act to further amend the Law of Property, and to reUeve 
Trustees. [13th August, 1859.] 

[Sections 1 and 2 relate to provisoes for re-entry on breach of covenants in a lease. Leases. 
and enact that a lessor giving license for, or ■waiving one Ireacli of covenant 
(23 & 24 Vict. 0. 38, s. 6, post), or in the case of one of several lessees, is not to lose 
the benefit of the covenanta.] 

[By section 3 the apportionment of rent among lessors is not to destroy the 
right of re-entry. See Conv. Act, 1881, s. 12, infra."] 

[Sections 4 to 9 are repealed by the Conv. Act, 1881.] 

[The 10th section relates to apportionment of rentcharge, which is not to extin- Apportion- 
guish the rentcharge ; see Booth v. Smith, W. N. (1884), 230.] ment of rent- 

charge. 

[Section 11 provides that the release of part of land charged is not to affect a 
judgment ; but see now 27 & 28 Vict. o. 112, post.] 

[Section 12 relates to appointments under powers ; and as, by common law, if Defective 
the formalities required by the instrument creating the power were not stricth/ com- appointments. 
pUed with, the appointment was void, while Courts of Equity went to the other 
extreme, and aided defective execution of powers, in favour of purchasers, &c., 
even where the defect was in matter of substance, e.g., the want of a consent 
required by an instrument, this section provides that " a deed hereafter executed in 
" the presence of and attested by two or more witnesses in the manner in which 
"deeds are ordinarily executed and attested shall, so fa/r as respects the execution 
" and attestation thereof, be a valid execution of a power of appointment by deed, or by 
"any instrument in writing not testamentary : Provided always, that this provision 
" shall not operate to defeat amy direction in the instrument creating the power that 
"the consent of any particular person shall be necessary to a valid execution, or 
" that any act shall he performed in order to give validity to any appointment."] 

[By section 13 a bond fide sale under a power is not to be avoided by reason of Sale under 
miitien payment to tenant for life. This section was to meet the case of power. 
Cocherellr. ChohneUy, 1 K. & M. 418.] 

[Sections 14 to 18 provide that (subject to the savings contained in section 18, Sale by 
seeLewin 420, seq.) where by any will which shall come into operation after the trustees and 
of thia Act the testator shall have charged his real estate with the payment executors. 

h2 



100 



LAW OF PEOPERTT AND TRTTSTEES EEEIEP AMENDMENT ACT. 



22 & 23 Vict, of his debts, or with the payment of any legacy or other speoifio sum of money, 
0. 35. and ehall hare devised the estate so charged to any trustee or trustees, the devisee in 

trust may raise money by sale, notwithstanding want of express power in the 

will ; but if he shall not have devised the hereditaments charged as aforesaid in 
such terms as that his whole estate and interest therein shall become vested in 
any trustee or trustees, the executor or executors (see He Clay, 16 Ch. D. 3) are to have 
the power of raising money.] 

[Sections 19 and 20 supply a deficiency in the law of inheritance, 3 & 4 Will, i, 
0. 106, and will be found in Sugden's R. P. Statutes, 259.] 

Assignment [Section 21 relates to the assignment of personalty, and provides that "any 

to self and " person shall have power to assign personal property, now by law assignable, in- 
others. " eluding chattels real, directly to himself and another person or other persons or 

" corporation, by the like means as he might assign the same to another." See 

Conv. Act, 1881, s. 50, infra.'] 

Registration [Section 22 enacts that after December 31, 1859, the provisions as to registration 
of judgments, of judgments shall apply to Crown debts.] 

[Section 23 relates to trustees' receipts ; see now Conv. Act, 1881, s. 36, infra.'] 

Concealment [Section 24 provides that any vendor or mortgagor ooucealiag any settlement, 
of inoum- deed, will, or other instrument material to the title, or any incumbrance, from the 

brances a purchaser [or mortgagee], shall be guilty of a misdemeanor, and punishable 

misdemeanor, accordingly.] 

The insertion of the words "or mortgagee," which were accideutaEy omitted, 
was provided for by 23 & 24 Vict. c. 38, s. 8, post, p. 104. Semble, a. 24 does not 
apply to the concealment of an incumbrance prior to the date before which the 
conditions of sale stipulate that no title shall be fhown (Smith v. Sobinson, 13 
Ch. D. 148). 

liiterpreta- [Section 26 interprets " land," "mortgage," "mortgagor," "mortgagee," and 

tion of terms, "judgment," as used in the previous provisions of the Act.] 

Trustees and [By section 26 trustees, executors, or administrators making payment under a 
executors. power of attorney are not to be liable by reason of death of party giving such 
power. See now Conv. Act, 1881, o. 47, and Conv. Act, 1882, ss. 8, 9, infra.] 

As to liability XXVII. Where an executor or administrator, liable as such to the 

of executor or , , j. x • j • i 

administrator rents, covenants, or agreements contained m any lease or agreement 
in respect of for a lease granted or assigned to the testator or intestate whose estate 
is heing administered, shall have satisfied all such liabilities under the 
said lease or agreement for a lease as may have accrued due and been 
claimed up to the time of the assignment hereafter mentioned, and 
shall have set apart a sufficient fund to answer any future claim that 
may be made in respect of any fixed or ascertained sum covenanted or 
agreed by the lessee to be laid out on the property demised or agreed 
to be demised, although the period for laying out the same may not 
have arrived, and shall have assigned the lease or agreement for a 
lease to a purchaser thereof (a), he shall be at liberty to distribute the 
residuary personal estate of the deceased to and amongst the parties 
entitled thereto . respectively, without appropriating any part, or any 
further part (as the case may be), of the personal estate of the deceased 
to meet any future liability under the said lease or agreement for a 
lease; and the executor or administrator so distributing the residuary 
estate shall not, after having assigned the said lease or agreement for 
a lease, and having, where necessary, set apart such sufficient fund as 
aforesaid, be personally liable in respect of any subsequent claim 
under the said lease or agreement for a lease ; but nothing herein con- 



rents, cove 
Hants, or 
agreements, 



1 



LAW OF PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 



V^ , -101 



tained shall prejudice the right of the lessor or those claiming under 22 & 23; Viot. 
him to foUow the assets of the deceased into the hands of the person °'^''^-— "" 
or persons to or amongst whom the said assets may have been dis- 
tributed. 

(a) This section is retrospective {Smith v. Smith, 1 Dr. & Sm. 384 ; Se Green, 2 Section retro- 

De Gr. F. & J. 121 ; and see Seilly v. Meilly, 34 Beav. 406 ; Bennett v. lytton, 2 J; speotive. 
& H. 1S5, 158). 

The c^se of a leasehold assigned to a residuary legatee is not within this section, Legatee not a 

such legatee not being a purchaser {Dodson v. Sammeli, 1 Dr. & Sm. 575 ; 9 W. R. purchaser. 

See as to the effect of the section, Dodson v. Sammeli; Re HowMns, 10 Hare, App. 
xxxiii. ; Se Forest, W. N. (1868), 194 ; and see England v. Lord Tredegar, 1 Bq. 
314 ; Seton, 891. 

XXV ill. In like manner, where an executor or administrator Hahle As to liability 
as such to the rents, coTenants, or agreements, contained in any con- lo^^ifresDeot 
veyance on chief rent or rentcharge (whether any such rent be bylimi- of rents, &c., 
tation of use, grant or reservation), or agreement for such conveyance, ^oeTon^ent- 
granted or assigned to or made and entered into with the testator or charge, 
intestate whose estate is being administered, shall have satisfied all 
such liabilities under the said conveyance, or agreement for a convey- 
ance, as may have accrued due and been claimed up to the time of the 
conveyance hereafter mentioned, and shall have set apart a sufficient 
fund to answer any future claim that may be made in respect of any 
fixed and ascertained sum covenanted or agreed by the grantee to be 
laid out on the property conveyed, or agreed to be conveyed, although 
the period for laying out the same may not have arrived, and shaU. 
have conveyed such property, or assigned the said agreement for such 
conveyance as aforesaid, to a purchaser thereof, he shall be at liberty 
to distribute the residuary personal estate of the deceased to and 
amongst the parties entitled thereto respectively, without appropriating 
any part or any further part, (as the case may be) of the personal 
estate of the deceased to meet any future liability under the said con- 
veyance or agreement for a conveyance ; and the executor or adminis- 
trator so distributing the residuary estate shall not, after having made 
or executed such conveyance or assignment, and having, where neces- 
sary, set apart such sufficient fund as aforesaid, be personally liable in 
respect of any subsec[uent claim under the said conveyance, or agree- 
ment for conveyance; but nothing herein contained shall prejudice 
the right of the grantor, or those claiming under him, to follow the 
assets of the deceased into the hands of the person or persons to or 
among whom the said assets may have been distributed. 

•yy I X . Where an executor or administrator shall have given such As to dis- 
or the like notices as in the opinion of the Court in which such executor ^he a^sets°of 
or administrator is sought to be charged would have been given by the testator or 
Court of Chancery in an administration suit, for creditors and others to ^oyf/'^yfn®'^ 
send in to the executor or administrator their claims against the estate by executor, or 
of the testator or intestate, such executor or administrator shall, at the administrator, 
expiration of the time named in the said notices or the last of the said 
notices for sending in such claims (J), be at liberty to distribute the 



102 LAW OP PEOPEETT AKD TEUSTEES EELIEF AMENDMENT ACT. 

22 & 23 Vict, assets of the testator or intestate, or any part thereof, amongst the 

"• ^^' "' ^^' parties entitled thereto, having regard to the claims of which such 

executor or administrator has then notice, and shall not he liable for 

the assets or any part thereof so distributed to any person of whose 

claim such executor or administrator shall not have had notice at the 

time of distribution of the said assets or a part thereof, as the case 

may be ; but nothing in the present Act contained shall prejudice the 

right of any creditor or claimant to follow the assets or any part 

thereof into the hands of the person or persons who may have received 

the same respectively. 

Indemnity of W As to tte advertisements, see Ord. LV. r. ii et seg. post ; Wood v. Weightman, 
executors 13 Ec[. 434. Executors acting under the provisions of this section, whether they 

issuingnotioes tave actually paid legacies over, or only appropriated them, have complete protec- 
to creditors tion against future claims {Glegg v. Sowland, 3 Eq. 368 ; and see Hunter v. Toung, 

i Ex. D. 256). 
This section does not protect executors against claims -of which they have in fact 

notice {Be Zand Credit Company of Ireland, "W. N. (1872), 210) ; and see Wood v. 

Wood, 21 W. E. 135. 
Claims hy The section protects an administrator who has given the required notices from 

next of Hn. claims by the next of kin (Ifewton v. Sherrg, 1 C. P. D. 246 ; 24 W. E. 371). 

Trustee, XXX. Any trustee, executor, or administrator shall be at liberty, 

^vlppiv by 'w^itbout the institution of a suit, to apply by petition to any judge of 
petition to the High Court of Chancery, or by summons upon a written statement 
tuto's'^ °' *° ^-"^y ^'^"^ JTidge at chambers, for the opinion, advice, or direction of 
opinion, ad- such judge on any question respecting the management or administra- 
maSaffem^t ^^°^ °^ ^^^ ^^'^^^ property or the assets of any testator or intestate, such 
&c., of trust application to be served upon or the hearing thereof to be attended by 
property. g^jj persons interested in such application, or such of thSm as the said 
judge shall think expedient; and the trustee, executor, or adminis- 
trator acting upon the opinion, advice, or direction given by the said 
judge shall be deemed, so far as regards his own responsibility, to 
have discharged his duty as such trustee, executor, or administrator 
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 conceal- 
ment or misrepresentation in obtaining such opinion, advice, or direc- 
tion; and the costs of such application as aforesaid shall be in the 
discretion of the judge to whom the said application shall be made (c). 

Ord. LII. (c) The practice xrnder this section is now regulated by Ord. LII. rr. 19 — 22, 

rr. 19 — 22. infra. 

Application - "^^ application is generally made by petition (JJe Dennis, 5 Jur. N. S. 1388) ; 
hovv made ' though it maybe made by summons (Seton, 492). The petition or statement should 
•D J.-J.- j.\ ^^ signed by counsel (23 & 24 Vict. c. 38, s. 9 ; Se JBoulton, 30 W. E. 596 ; "W. N. 
Petition to be (1882), 62) ; and the " judge by whom it is to be answered, may require the peti- 
signed by tioner or applicant to attend him by counsel, either in chambers or in Court, where 

counsel. te deems it necessary to have the assistance of counsel " (sect. 9). The Court made 

an order under the section on the petition of a cestui que trust [Re Ward, 14 W. E. 

96) ; and of one trustee without his oo-trustee's concurrence (Re Muggeridge, Johns. 

625). 
Service. The applicant should serve the petition or summons on the persons beneficially 

interested [Re Green, 6 Jur. N. S. 530 ; 8 W. E. 403) ; but see Re Tuck, W. N. 

(1869), 15 ; Re Larkert, W. K. (1872), 85 ; Re French, 15 Eq. 68. 



LAW OF PEOPEETY AND TRUSTEES RELIEF AMENDMENT ACT. 103 

_ " As the Act does not give any rigHt of appeal, it was not intended to decide 22 & 23 Viot. 

luce questions of law, its object being to procure for trustees at a small expense o. 35, s. 30. 
tne assistance of the Court upon points of minor importance arising in the manage^ 



meut of the trust" (Lewin, 535; Re Muggeridge, Johns. 625 ; Ee Mochett, Johns. What ques- 
628 ; He Spiller, 2 L. T. 71 ; 8 W. E. 333 ; Se Leslie, W. N. (1876), 93 ; Ee Jacob, tions enter- 
9 "W. R. 474). So the Court wiU give advice as to investments [Be Lorenz, 1 Dr. & tained on 
Sm. 401 ; Me Kmwles, 18 L. T. 809) ; or payment of debts [Re Box, 1 H. & M. 652) ; petition, 
or the propriety of trustees consenting to a sale [Earl Fowlett v. Rood, 5 Eq. 115) ; Questions of 
or advancing money for maintenance, or repairs [Re Lord Sotham, 12 Eq. 76 ; Cul- management. 
bertsoyi v. Wood, 19 W. E. 260) ; but as to leasing, see Re Shaw, 12 Eq. 124. 

So the Court has determined whether a power to invest iu the purchase of lands 
and hereditaments authorized a purchase of ground rents [Re Peyton, 7 Eq. 463 ; 
and see further as to investments. Re Lmgdale, 10 Eq. 39 ; Re Wedderhurn, 9 Ch. D. 
112 ; Re Gardross, 7 Ch. D. 728 ; Re T. 15 Ch. D. 78, -where the consent of a person 
of unsound mind not so found, was required) ; -whether an appropriation of a legacy 
ought to have been made {Re Mwrray, W. N. (1868), 195) ; and whether part of the 
capital of infants' shares might be applied to their maintenance (JJe Tills, 17 W. R. 
304). See also Re De la Warr, 16 Ch. D. 587 ; Re Mackintosh, 42 L. J. Ch. 208 ; 
Re T. 15 Ch. D. 78; Re Smith, W. N. (1872), 134; 20 W. E. 695; Re Leslie, 2 
Ch. D. 185 ; Re Thatcher, 26 Ch. D. 426 ; Daniell, 2229. 

But where trustees were authorized by the settlement to lay out trust funds in Not (1) ques- 
purchasing real estate, which -was accordingly purchased, and a petition was pre- tions of detail 
sented to obtain a direction oi the Court as to the employment of a further portion where affida- 
of the trust funds in the permanent improvement of the purchased estates, the -vits are 
Court having no means of ascertaining the amount required or directing its applica- required ; 
tion, refused to make an order on petition [Re Barrington, 1 J. & H. 142 ; comp. 
Re Mockett, Johns. 628). In another case {Re Simson, 1 J. & H. 89), where the nor (2) 
question was whether a trustee would be justified in investing in East India stock 
or in railway debentures, or on mortgage of freeholds, copyholds, or leaseholds, 
V;-C. Wood answered the inquiry by simply stating that the trustees would be 
justified in investing in freehold securities in En^and or Wales, and gave no 
answer to the rest of the question ; and see Marsh v. Att.-Gen., 2 J. & H. 61, where questions of 
the Court thought the question too difficult to decide on petition, and Erected a bill ^jfB^oujty . 

So, where questions of construction arise, an action must be instituted, or the nor (3) 
advice of the Court taken under the Trustee Relief Act or Ord. LV. r. 3 ; see Re questions of 
Evans, 30 Beav. 232 ; Re Muggeridge, Johns. 625 ; Re Lorenz, 1 Dr. & Sm. 401, construction ; 
■where V.-C. Kindersley refused, on a petition under this Act, to advise a sole 
trustee of a marriage settlement as to his discretionary power to make advances to 
the husband at the written request of the wife ; and Re Hooper, 29 Beav. 657, 
where the Master of the Eolls stated that the object of the Act was to enable 
trustees to obtain the opinion of the Court on matters of discretion vested in 
them, and not to determine questions of construction. These cases seem to over- 
rule cases where questions as to the validity {Re Michel, 28 Beav. 39) or con- 
struction {Re Green, 8 W. E. 403 ; 'Re Bamies, 9 W. R. 134 ; Re Elmore, 6 Jur. N. S. 
1325; EjC Jacob, 29 Beav. 402) of a bequest have been determined upon petition 
under the section, and Ee Rett's WiU, 27 Beav. 576, where an opinion -was given 
turning to a certain extent upon exirinsic evidence admitted with a -view to the 
construction of a -wiU. See, however, Re Feyton's Settlement, 10 W. E. 515, where 
the Master of the Eolls on a petition under this Act decided that an absolute power 
of sale given to trustees, authorized them on a sale to fix a reserved bidding. 

The Court will not pronounce an opinion on a hypothetical case ; and, therefore, nor (4) 
refused to give any advice as to the incidence of future calls which might be made hypothetical 
on account of shares bequeathed {Re Box, 1 H. & M. 652 ; 11 W. E. 945). oases. 

The opinion of the Court was held not to be subject to appeal {Re Mockett, Johns, jq-g appeal 
628) ; but see Jud. Act, 1873, B. 19 ; Re Norris, W. N. (1«83), 35, 65. 

No evidence is admissible on the application {Re Mockett) ; the facts must be 
taien to be as represented, ttie responsibility of such representations resting -with 
the trustees {Re Muggeridge, Johns. 625), and no inquiries -will be directed {Re 
Mockett). 

As a general rule the costs of an application under this section will be ordered to Costs. 
come out of the corpus of the trust property {ReM' Veagh, Seton, 491 ; ReEkoes, ibid.). 

But where the question arose as to the application of income, the costs came out 
of the income {Anon. 8 W. E. 333), 

[By sect. 31, trust instruments are to be deemed to contain clauses for the indem- 
nity of trustees. See Re Brier, 26 Ch. D. 238.] 

[Sect. 32 relates to investments by trustees, and this section is made retrospective 
by Lord St. Leonards' Act, 1860, sect. 12, post, p. 105, where this and the other 
seotionB relating to investments will be found.] 

[Sect. 33 provides that the Act shall not extend to Ireland.] 



104 



LAW OF PEOPEKTY FURTHER AMENDMENT ACT. 



23 & 24 Vict. LA^ OF PEOPEETY FUETHEE AMENDMENT ACT. 

u. 38. 
■ 23 & 24 VICT. Cap. 38. 

An Act to further amend the Law of Property. 

[23rd July, I860.] 

Judgments. [Section 1 provided that no judgment entered up after the passing of this Act (23 

Writs of J"lyi I860) shall affect any land as to a bond fde purchaser for valuable considera- 

execution of tio^^i o'f ^ mortgagee (whether such purchaser or mortgagee have notice or not of 
judgments ^'^1 such judgment), unless a writ or other Am process o/ execution is issued and regis- 
should be re- t^ed before the execution of the conveyance or mortgage, and the payment of the 
gistered (see purchase or mortgage money by him : And no judgment entered up after the pass- 
now 27 & 28 ^S of tJi6 Act, nor any writ of execution or otiier process thereon, shall affect any 
Vict. c. 112 ^TO-A of whatever tenure as to a bond fide purchaser or mortgagee, although execu- 
tes*), tion or other process shall have issued thereon, and have been duly registered, unless 
such execution or other process shall be executed and put in force within three calendar 
months from the time when it was registered. See now the Act of 1864, post ; 
judgments registered before the date of this Act (23 July, 1860) affect purchasers, 
&c., according to the old law, though no writ of execution has been issued, see 
Evans v. Williams, 2 Dr. & Sm. 324 ; and as regards the debtor himself, and volun- 
teers under him, the old law was in force until 27 & 28 Vict. o. 112, which is 
general in its provisions.] 

Mode of [By section 2 the registry of any writ of execution, or other due process on any 

registering. judgment, in order to bind » purchaser or mortgagee, was to be made by a me- 
morandum or minute referring to the judgment already registered, so as to connect 
the registry of the writ, of execution or other process therewith ; and the senior 
master of the Court of Common Pleas at Westminster was to enter the particulars 
in a book in alphabetical order by the name of the person in whose behalf the judg- 

Double search ment was registered. The registry of the writ of execution is now to be made in 

necessary. the name of the debtor by 27 & 28 Vict. c. 112, s. 3, post^ 

Protection of [Section 3, reciting 4 & 5 W. & M. o. 20 (since repealed), and other Acts as to 
executors the registration of judgments, provided that no judgment which had not already 

against been, or which should not thereafter be entered or docketed so as to bind lands, 

unregistered tenements, or hereditaments as against purchasers, mortgagees, or creditors, should 
judgments. have any preference against heirs, executors, or administrators in their administra- 
tion of their ancestors', testators', or intestates' estates. See as to this section, 
VoM Gheluive v. Nerinckx, 21 Ch. D. 189 ; Me Williams, 15 Eq. 270 ; Jennings v. 
Jtigb}/, 33 Beav. 198. 

The section applies to judgments signed before the Act (Kemp v. Waddmgham, 
L. R. 1 Q. B. 355) ; and to County Court judgments XMc Turner, 12 W. R. 
337 ; 33 L. J. Ch. 232).] 

[Section 4 provided that judgments, in order to have preference in administra- 
tion, must be re-registered every five years according to the Acts of 1 & 2 Vict., 
2 & 3 Vict., and 18 & 19 Vict.] 

[Section 6 defined judgments as they are now defined by the latest judgment Act, 
27 & 28 Vict. u. 112, s. 2, post.-] 

[Section 6 amended the law of waiver as between lessor and lessee, see p. 99, 
ante.'] 

[Section 7 relates to the law of uses, and the doctrine of scintilla juris, as to which 
see Sandars on Uses, pp. 112, 152.] 

[Section 8 corrected a clerical error iu sect. 24 of 22 & 23 Vict. o. 35, p. 100, ante.] 

[Section 9 provides that when trustees apply for the opinion, advice, or direction 
of a judge, under section 30 of 22 & 23 Vict. c. 35, the petition or statement should 
be signed by counsel, see p. 102, ante.] 



Power to Lord X. It stall te lawful for the Lord Chancellor, Lord Keeper, or Lords 
&o™rEn™^ Commissioners for the custody of the Great Seal of England, with the 



LAW OP PEOPERTY FURTHER AMENDMENT ACT. 105 

advice and assistance of the Master of the Eolls, the Lords Justices of 23 & 24 Viot. 
the Court of Appeal in Chancery, and the Vice-Chancellors of the said °- ^^' °- ^°- 
Court, or any three of them, and for the Lord Chancellor of Lreland, land and 
with the advice and assistance of the Lords Justices of Appeal and the makTgeneral 
Master of the Eolls in Ireland, to make such general orders from time orders as to 
to time as to the investment of cash under the control of the Court, STash under 
either in the Three per Cent. Consolidated or Eeduced or New Bank tlie control of 
Annuities, or in such other stocks, funds, or securities as he or they * ® °^^' 
shall, with such advice or assistance, see iit ; and it shall he lawful for 
the Lord Chancellor, Lord Keeper, or Lords Commissioners in England, 
and for the Lord Chancellor in L-eland, to make such orders as he or 
they shall 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 the said Court of Chancery, in 
trust in any cause or matter, into any such other stocks, funds, or se- 
curities 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 
summary way, and such parties shall be served with notice thereof as 
the Court shall direct (s). 

(a) See Ord. XXII. r. 18, and note thereto, infra. 

XI. "When any such general order as aforesaid shall have been made Powers of 
it shaU be lawful for trustees, executors, or administrators having i^gt^intlie 
power to invest their trust funds upon Government securities, or upon stocks in 
Parliamentary stocks, funds, or securities, or any of them, to invest ^^erthe 
such trust funds, or any part thereof, in any of the stocks, funds, or control of the 
securities in or upon which by such general order cash under the jn'^te™^^ * 
control of the Court may from time to time be invested (b). 

(b) This section applies notwithstanding a prohibition clause in the instrument 
{Re Wedderburn, 9 Ch. D. 112). 

See also the following enactments as to investments by trustees : Investments 

22 & 23 Viot. 0. 35, s. 32, made retrospective by sect. 12 of the Act in the text, ■. trustees 
infra (but not so as to interfere with rights already accrued, Hume v. Richardson, 10 fM fc 03 Vict 
"W. B. 528 ; 4 DeG-.E. & J. 29), provides that when a trustee, executor, or admlnis- ^ ggv 
trator "shall not, by some instruments creating his trust, be expressly forbidden ' '' 
" to invest any trust fund on real securities in any part of the United Kingdom, or 
" on the stock of the Bank of England or Ireland, or on East India Stock, it shall 
" be 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 shaU in other respects be reasonable and 
"proper." It has been held that this section does not apply where a particular 
fund is settled and there is no power to vary investments {Se Warde, 2 J. & H. 191) ; 
but see Waite v. Zittlewood, 41 L. J. Ch. 636 ; Ee Clergy Corporation, 18 Eq. 280. 

30 & 31 Vict. c. 132, s. 1, provides that " the words ' East India Stock' in the 30 & 31 Viot. 
" said Act (22 & 23 Viot. c. 35) shall include and express as well the East India 0. 132, s. 1. 
" Stock which existed previously to the 13th August, 1859, when the said Act re- <i -^^ India 
" eeived the assent of her Majesty, as East India Stock charged on the revenues of gj^gij >> 
" India, and created under and by virtue of any Act or Acts of Parliament which 
" received her Majesty's assent on or after the 13th Augpist, 1859 ; and it shall be 
" lawful for every trustee, executor, or administrator to invest any trust fund in his 
" possession or under his control in the stock created by the last-mentioned Act or 
" Acts to the same extent, and for the game purposes and objects, as he can now 



106 



LAW OP PROPERTY FURTHER AMENDMENT ACT. 



23 & 24 Viot. 
0. 38, s. 11. 

Sect. 2. 



Right to 
property of 
- intestate 
barred after 
twenty years.^ 



Act not to 
extend to 
Scotland, &c. 



" invest such trust fund in the East- India Stock, which existed previously to the 
" 13th August, 1859." Railway Stock, with a charge on the revenues of India, is 
not within this Act (Green v. Angell, W. N. (1867), 305). 

30 & 31 Vict. 0. 13U, B. 2, provides that "it shall he lawful for every trustee, 
" executor, or administrator to invest any trust fund in his possession, or under his 
" control, in any securities the interest of which is or shall be guaranteed by par- 
"liament to the same extent and in the same manner as he may invest such trust 
" fund in such securities as aforesaid." 

See also 33 & 34 Vict. c. 34, as to investment of charity funds on real security ; 
34 Viet. c. 27, authorizing trustees having power to invest in mortgages or bonds of 
a company, to invest in the debenture stock of such company ; 34 & 36 Vict. c. 47, 
as to investment in Metropolitan Consolidated Stock ; and the Local Loans Act, 1875, 
as to investment by trustees in debentures or debenture stock issued under that Act. 

[Section 12 made 22 & 23 Vict. o. 35, s. 32, retrospective. See note [b), supra."] 

[Section 13 recites 3 & 4 WiU.. 4, e. 27, s. 40, which provides that money charged 
on land and legacies are to be deemed satisfied at the end of twenty years, if there 
shall be no interest paid or acknowledgment in writing in the meanwhile, and 
extends that enactment to the case of claims to the estates of persons dying in- 
testate. See now 37 & 38 Vict. c. S7.] 

[Section 14 is repealed by Statute Law Revision and Civil Procedure Act, 1883.] 

XV. This Act is not to extend to Scotland, nor are any of the clauses, 
except clause six and the subsequent clauses, to extend to Ireland. 



37 & 38 Vict, 
c. 78. 



Sales by 
jtrustees. 



VENDOE AND PUECHASER ACT, 1874. 

37 & 38 VICT. Cap. 78. 

An Act to amend the Law of Vendor and Purchaser, and further to 
simplify Title to Land. '[7th August, 1874.] 

"Whereas it is expedient to facilitate the transfer of land by means 
of certain amendments in the law of vendor and purchaser : 
Be it enacted, &c., as follows : 

[By sect. 1, in the completion of any contract of sale of land made after Deo. 31, 
1874, forty years is substituted for sixty years as the root of title.] 

[By sect. 2— 

Eirst. Under a contract to grant or assign a term of years, the lessee or 
assign shall not be entitled to call for the title to the freehold. See Fatman 
V. Sarlmd, 17 Ch. D. 353. 

Second. Recitals, &c., contained in instruments, twenty years old at the date 
of the contract, shatU, unless and except so far as they shall be proved to 
be inaccurate, be sufficient evidence. See Bolton v. tondon School Board. 
7 Ch. D. 766. _ ' 

Third. The inabiKty of .the vendor to furnish a legal covenant to produce 
and furnish copies of documents of title shall not be an objection to title 
in case the purchaser wOl have an equitable right to the production. 

Eourth. Covenants for production shall be furnished at the purchaser's 
expense, and the vendor shaU bear the expense of perusal and execution 
on behalf of and by himself. 

Eifth. "Where the vendor retains any part of an estate to which any docu- 
ments of title relate he shaU be entitled to retain such documents.] 

m. Trustees who are either vendors or purchasers may sell or buy 
without excluding the application of the second section of this Act. 



VENDOR AND PURCHASER ACT, 1874. 107 

IV. The legal personal representative of a mortgagee of a freehold 37 & 38 Viot. 
estate, or of a copyhold estate to which the mortgagee shall have been "■ '^i «■ ^•.. 
admitted, may, on payment of all sums secured hy the mortgage, convey or Legal per- 
surrender the mortgaged estate, whether the mortgage he in form an sentative'^may 
assurance subject to redemption, or an assurance upon trust {a). convey legal 

6StS>t>6 01 

(a) This section has heen repealed in oases of death after Deo. 31st, 1881, by the mortgaged 
Conveyancing Act, 1881, s. 30 (2), post, p. 117. It did not apply to a transfer of property, 
a mortgage [Me Spradbei-y, 14 Ch. D. 514 ; Re Brook, 26 W. R. 841), or to a sale 
under a povrer in the mortgage (ije White, W. N. (1881), ] 15 ; 29 W. R. 820). 

V. Upon the death of a hare trustee of any corporeal or incorporeal Bare legal 
hereditament of which such trustee was seised in fee simple, such heredita- gimple to vest 
ment shall vest like a chattel real in the legal personal representative from in executor or 
time to time of such trustee (b). aomimstrator. 

(8) Sect. 48 of the Land Transfer Act, 1875, provided as follows : — " Section five 33 & 39 Vict, 
of the Vendor and Purchaser Act, 1874, shall be repealed on and after the commence- „. §7 g. 4,8. 
ment [1st January, 1876]-of tius 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 hereditament 
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 the enactment by this section substituted for the aforesaid section of ' The 
Vendor and Purchaser Act, 1874,' shall not apply to lands registered under this 
Act." 

This section of the Land Transfer Act has been itself repealed, in cases of death 
after 3lBt Dec. 1881, by the Conveyancing Act, 1881, s. 30 (2), post, p. 117. As to 
Ireland, see sect. 73 of the Conveyancing Act, 1881. 

For tie meaningof "bare trustee," see Christies. Ovington, 1 Ch. D. 279^ Morgan " Bare 
Y. Swansea Sanitary Authority/, 9 Ch.D. 682. ' trustee." 

YI. "When any freehold or copyhold hereditament shall be vested in Married 
a married ■woman as a bare trustee (c) she may convey or surrender yoman '^T^o 
the same as if she were a feme sole. trustee may 

(c) As to the meaning of "bare trustee," see note (J) to sect. 5. See now as to ^' 

married women, the Married Women's Property Act, 1882, infra. 

[The 7th section, by which protection and priority by legal estates and tacking Tacking, 
was not to be allowed after the commencement of the Act, was repealed by sect. 129 
of the Land Transfer Act, 1875, except as to anything duly done thereunder before 
1st January, 1876 ; see Eobinson v. Trevor, 12 Q. B. D. 432. But see now as to 
lands in Yorkshire, the Torkshire Registries Act, 1884, s. 16.] 

[By sect. 8'the non-registration of a wiU in Middlesex or Yorkshire is cured if an Non-regis- 
assurance to a purchaser by the devisee or by some one deriving title under him, is tration in 
registered before an assurance from the testator's heir-at-law. See now as to York- Middlesex or 
shire, the Yorkshire Registries Act, 1884.] Yorkshire. 

IX. A vendor or purchaser of real or leasehold estate in England, or Vendor or 

their representatives respectively, may at any time or times and from ^f'jjt^ta^ 

time to time apply in a summary way to a judge of the Court of decision of 

Chancery in England in chambers, in respect of any requisitions or j^^mbras as 

objections, or any claim for compensation, or any other question to requisitions 

arisine out of or connected with the contract (not being a question °^ objections, 
^ - , . _ _ ,, or compensa- 

afEecting the existence or validity of the contract), and the judge shall tion, &c. 

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 (d). 

Id) The Act was not intended to enable the Court to decide disputed questions of 



108 



VENDOE AND PUEOHASER ACT, 1874. 



37 & 38 Vict. 
c. 78, s. 9. 



Applications 
under s. 9. 



Order a bar 
to action for 
specific per- 
formance. 
Appeal. 
Costs. 



Extent of 
Act. 



fact {Se FoppU and Barratt, 25 W. E. 248 ; Re Burroughs, 5 Ch. D. 601) ; but 
evidence is admissible as on a reference as to title under a judgment where the 
- contract had been established (JBe Burroughs) ; and it is convenient and not unusual 
for a concise written statement of the circumstances of the case to be agreed upon, 
which is signed by the solicitors, and a copy left at the Chambers, either before or 
upon the return of the summons (DanieU, 1382). Where a witness refused to make 
an afBdavit, his evidence was directed to be taken before a special examiner {fie 
Springall, W. N. (1875), 225). 

Applications have been made to the Court under the Act in a great variety of 
cases which will be found coUeeted in Daniell, p. 1382 et seq. Eor instances of 
applications see Re Coward, 20 Eq. 179 ; Re Ford and Hill, 10 Ch. D. 365 ; Oshome to 
Rowlett, 13 Ch. D. 774 ; Re Tanqueray- Willaume, 20 Ch. D. 465 ; Royal Society and 
Thompson, 17 Ch. D. 407 ; Whiting to Loomes, 14 Ch. D. 822 ; 17 Ch. D. 10 ; Re 
Leohmere and Lloyd, 18 Ch. D. 524 ; Re Brown and Sibly, 3 Ch. D. 156 ; Re Cooper 
and Allen, 4 Ch. D. 802 ; Re Sail Bare, 21 Ch. D. 41 ; Re Foster and Lister, 6 Ch. 
D. 87 ; Re Figott and G. W. Ry., 18 Ch. D. 146. The Act does not apply in cases 
of voluntary grants, but a nominal consideration is sufficient as a foundation for 
proceedings under it {Re Marquis of Salisbury, 23 W. E. 824). The summons may 
by leave be served out of the jurisdiction {Drapers' Co. v. McCann, 1 Ij. E. Ir. 13). 

An action for specific performance cannot be brought after an order has been 
made under the Act disposing of the matters in dispute {Thompson v. Ringer, W. N. 
(1881), 48 ; 29 W. E. 620). 

The time within which an appeal can be brought from an order under the section 
is twenty-one days {Re Blyth and Young, 13 Ch. D. 416). 

The general rule is, that the purchaser must pay the costs if he fails on a vendor's 
summons caused by an objection to the title {Osborne to Rowlett, 13 Ch. D. 774 ; 28 
W. E. 365 ; Re WaddeWs Contract, 2 Ch. D. 172 ; Re Cooke's Contract, 4 Ch. D. 454). 
Where, however, thei purchaser failed on an objection as to incumbrances, but the 
case was a proper one to be brought before the Court, each party had to pay his 
own costs of a vendor's summons {Finch-^. Jukes, W. N. (1877), 211 ; and see Re 
Coward, 20 Eq. 179; 23 W. K. 605). So, where' the difficulty had arisen entirely 
from conflicting decisions no costs were given {Osborne to Rowlett) ; and so, where 
there was a fair point for discussion {Re Metrop. Ry. Co. and Cosh, 13 Ch. D. 613). 

If the vendor is in the wrong his gummons will be dismissed with costs {Re Pack- 
man and Moss, 1 Ch. D. 214 ; 24 W. E. 170 ; and see Re Siggins, 21 Ch. D. 99 ; Re 
mil, W. N. (1884), 15). 

Where the purchaser makes an improper requisition and takes out a summons for an 
order on the vendors to answer it, the summons should be dismissed with costs {Re 
Ford and Hill, 10 Ch. D. 365, where on appeal the order below was reversed, and the 
vendors got the costs of the appeal, but apparently paid the costs below). 

A vendor or purchaser of real or leaseliold estate in Ireland, or their 
representatives respectively, may in like manner and for the same pur- 
pose apply to a judge of the Court of Chancery in Ireland, and the 
judge shaU make such order upon the application as to him shall 
appear just, and shall order how and hy whom all or any of the costs 
of and incident to the application shall be borne and paid. 

X. This Act shall not apply to Scotland, and may be cited as the 
Vendor and Purchaser Act, 1874. 



CONVEYANCtNG AKD LAW OF PROPEUTT? ACT, 1881. 109 



CONYEYANCINa AND LAW OP PROPEETY ACT, 1881. 44&45Viot. 

0.41. 
44&45VICT. Cap. 41. 



An Act for simplifying and improving the practice of Conveyancing ; 
and for vesting in Trustees, Mortgagees, and others various 
powers commonly conferred by provisions inserted in Settlements, 
Mortgages, Wills, and other Instruments ; and for amending in 
various particulars the Law of Property ; and for other pur- 
poses. [22nd August, 1881.J 
Be it enacted, &c. as follows : 

I. — PnELIMIlfAEY. 

1. — (1) This Act maybe cited as tlie Conveyancing and Law of Short title; 
Property Act, 1881. ■ ^ 

(2) This Act shall commence and take effect from and immediately oonunenoe- 
af ter the thirty-first day of December, one thousand eight hundred and ™™* ' 
eighty-one. 

(3) This Act does not extend to Scotland. extent. 
2. In this Act— 

(i.) Property, unless a contrary intention appears, includes real and Interpretation 
personal property, and any estate or interest ia any property real or ?* F^operty, 
personal, and any debt, and any thiag in action, and any other right 
or interest : 

(ii.) Land, unless a contrary intention appears, includes land of any 
tenure, and tenements and hereditaments, corporeal or incorporeal, 
and houses and other bxuldings, also an undivided share in land : 

(iii.) In relation to land, income includes rents and profits, and pos- 
session includes receipt of income : 

(iv.) Manor includes lordship, and reputed manor or lordship : 

(v.) Conveyance, unless a contrary intention appears, includes 
assignment, appointment, lease, settlement, and other assurance, and 
covenant to surrender, made by deed, on a sale, mortgage, demise, or 
settlement of any property, or on any other dealing with or for any 
property; and convey, ujiless a contrary intention appears, has a 
meaning corresponding with that of conveyance : 

(vi.) Mortgage includes any charge on any property for securing 
money or money's worth ; and mortgage money means money, or 
money's worth, secured by a mortgage ; and mortgagor includes any 
person from time to time deriving title under the original mortgagor, 
or entitled to redeem a mortgage, according to his estate, interest, or 
right, in the mortgaged property ; and mortgagee includes any person 
from time to time deriving title under the original mortgagee ; and 
mortgagee in possession is, for the purposes of this Act, a mortgagee 
who, in right of the mortgage, has entered into and is in possession 
of the mortgaged property : 



110 CONVEYANCINa AND LAW OF PROPERTY ACT, 1881. 

44 & 45 Vict. (vii.) Incumbrance includes a mortgage in fee, or for a less estate, 

c 41 s 2 ^j *j 

— '■ — ' and a trust for securing money, and a lien, and a charge of a portion, 

annuity, or other capital or annual sum ; and incumbrancer has' a 
meaning corresponding with that of incumbrance, and includes every 
person entitled to the benefit of an incumbrance, or to require payment 
or discharge thereof : 

(viii.) Purchaser, unless a contrary intention appears, includes a 
lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, 
or other person, -who, for valuable consideration, takes or deals for any 
property ; and purchase, unless a contrary intention appears, has a 
meaning corresponding with that of purchaser ; but sale means only a 
sale properly so called : 

(ix.) Rent includes yearly or other rent, toU, duty, royalty, or other 
reservation, by the acre, the ton, or otherwise ; and fine includes pre- 
mium or fore-gift, and any payment, consideration, or benefit in the 
nature of a fine, premium, or fore-gift : 

(x.) Building purposes include the erecting and the improving of, 
and the adding to, and the repairing of buildings ; and a building 
lease is a lease for building purposes or purposes connected therewith : 

(xi.) A mining lease is a lease for mining purposes, that is, the 
searching for, winning, working, getting, making merchantable, carry- 
ing away, or disposing of mines and minerals, or purposes connected 
therewith, and includes a grant or licence for mining purposes : 

(xii.) WUl iaeludes codicil : 

(xiii.) Instrument includes deed, will, inclosure award, and Act of 
Parliament : 

(xiv.) Securities include stocks, funds, and shares : 

(xv.) Bankruptcy includes liquidation by arrangement, and any 
other act or proceeding in law having, under any Act for the time 
being in force, effects or results similar to those of bankruptcy ; and 
bankrupt has a meaning corresponding with that of bankruptcy : 

(xvi.) "Writing includes print ; and words referring to any instru- 
ment, copy, extract, abstract, or other document include any such in- 
strument, copy, extract, abstract, or other document being in writing 
or in print, or partly in writing and partly in print : 

(xvii.) Person includes a corporation : 

(xviii.) Her Majesty's High Court of Justice is referred to as the 
Court. 

n. — Sales and otkee Transactions. 
Contracts for Sale. 

[Sect. 3 provides that on sales made after the commeuoement of the Act certain 
stipulations commonly inserted in conditions of sale shall be implied, unless a con- 
trary intention is expressed in the contract. See sect. 2 of the Vendor and Pur- 
chaser Act, 1874, ante, p. 106 ; and see also Se Johnson, 28 Ch. D. 84.] 

of°TOntr*^rt *'~(^) Where at the death of any person there is subsisting a 

after death, contract enforceable against his heir or devisee, for the sale of the fee 

simple or other freehold interest, descendible to his heirs general, in 

any land, his personal representatives shall, by virtue of this Act, 



CONVEYANCING AND LAW OP PROPEETY ACT, 1881. HI 

L.ave power to convey tlie land for all the estate and interest vested in 44 & 45 Viot. 
lum at his death, in any manner proper for giving effect to the con- "• ^^> ^- ^' 
tract. 

(2) A conveyance made under this section shall not affect the 
beneficial rights of any person claiming under any testamentary dis- 
position or as heir or next of kin of a testator or intestate. 

(3) This section applies only in cases of death after the commence- 
ment of this Act. 

Discharge of Incumbrances on Sale. 
5. — (1) "Where land subject to any incumbrance, whether imme- ProTisionby 
diately payable or not, is sold by the Court, or out of Court, the Court ci^branoes'" 
may, if it thinks fit, on the application of any party to the sale, direct and sale freed 
or allow payment into Court, in case of an annual sum charged on the ®^® '^*'™' 
land, or of a capital sum charged on a determinable interest in the 
land, of such amount as, when invested in Government securities, the 
Court considers will be sufficient, by means of the dividends thereof, 
to keep down or otherwise provide for that charge, and in any other 
case of capital money charged on the land, of the amount sufficient to 
m.eet the incumbrance and any interest due thereon ; but in either case 
there shall also be paid into Court such additional amount as the Court 
considers will be sufficient to meet the contingency of further costs, 
expenses, and interest, and any other contingency, except depreciation 
of investments, not exceeding one-tenth part of the original amount to 
be paid in, unless the Court for special reason thinks fit to require a 
larger additional amount. 

(2) Thereupon, the Court may, if it thinks fit, and either after or 
■without any notice to the incumbrancer, as the Court thinks fit, declare 
the land to be freed from the inciunbrance, and make any order for 
conveyance, or vesting order, proper for giving effect to the sale, and 
give directions for the retention and investment of the money in 
Court. 

(3) After notice served on the persons interested in or entitled to 
the money or fund in Court, the Court may direct payment or transfer 
thereof to the persons entitled to receive or give a discharge for the 
same, and generally may give directions respecting the application or 

__ distribution of the capital or income thereof. 

(4) This section applies to sales not completed at the commencement 
of this Act, and to sales thereafter made (a). 

(a) An order tinder this section for the sale of land free from an inonmbranoe, Form of 
the iuoxmibranoer not being a party to the action, should follow the Trords of the order. 
Act, and after directing payment into Court of the purchase-money, and setting 
aside of an amount sufficient to meet the incumbrance, proceed to declare that 
thereupon any person should be at liberty to apply in chambers for a declaration 
that the laud is free from the incumbrance {Dic/cin v. Dickin, W. N. (1882), 113 ; 
30 W. B. 887). See also Patching v. Bull, 30 W. E. 244. The Court -vrill not 
compel a vendor to pay money into Court for the purpose of discharging an incum- 
brance when the result would be to inflict a great hardship on him [Be Great 
Northern My., 2S Ch. D. 788 ; 32 W. E. 519). 

[Sect. 6 provides that general words shall be implied in conveyances of land, Greneral 
buildings and manors.] words. 



112 CONVETANCINa AND LAW. OP PBOPERTT ACT, 1881. 

44 & 46 Viot. [Sect. 7 provides that covenants for title shall be implied in assurances where 
c. 41, s. 7. the conveyance is expressed to be made in one or other of the characters mentioned 

in the section.] 

Covenants 

*°^ *'*^^- Execution of Purchase Deed. 

Eights of 8. — (1) On a sale, the purchaser shall not be entitled to require 

to execution. ^^^^ t^^ conveyance to him be executed in his presence, or in that of 

his solicitor, as such ; but shall be entitled to have, at his own cost, 

the execution of the conveyance attested by some person appointed by 

him, who may, if he thinks fit, be his solicitor (5). 

(2) This section applies only to sales made after the commencement 
of this Act. 

(J) See note (s) to sect. 56, infra, p. 123. 

Production and Safe Custody of Title Deeds. 

Acknowledg- [By sect. 9 (1 — 6), an acknowledgment of the right to production and to delivery 

ment of right of copies of documents has the effect of and is substituted for the old covenant for 

to production, produotiou.] 
and under- 

ou8todv°of^^ ^ ( '^■) ^^y person claiming to be entitled to the benefit of an acknow- 
doouments. lodgment may apply to the Court for an order directing the production 
of the documents to which it relates, or any of them, or the delivery 
of copies of or extracts from those documents or any of them to him, 
or some person on his behalf ; and the Court may, if it thinks fit, 
order production, or production and delivery, accordingly, and may 
give directions respecting the time, place, terms, and mode of pro- 
duction or delivery, and may make such order as it thinks fit respect- 
ing the costs of the application, or any other matter connected with 
the application. 

(8.) An acknowledgment shall by virtue of this Act satisfy any 
liability to give a covenant for production and delivery of copies of or 
extracts from documents. 

[By sub-sects. 9 and 11, an undertaking for safe custody of documents satisfies 
any liability for safe custody of documents.] 

(10.) Any person claiming to be entitled to the benefit of such an 
undertaking may apply to the Court to assess damages for any loss, 
destruction of, or injury to the documents or any of them, and the 
Court may, if it thinks fit, direct an inquiry respecting the amount of 
damages, and order payment thereof by the person liable, and may 
make such order as it thinks fit respecting the costs of the application, 
or any other matter connected with the application. 

(12.) The rights conferred by an acknowledgment or an under- 
taking under this section shall be in addition to aU such other rights 
relative to the production, or inspection, or the obtaining of copies of 
documents as are not, by virtue of this Act, satisfied by the giving of 
the acknowledgment or undertaking, and shall have effect subject to 
the terms of the acknowledgment or undertaking, and to any pro- 
visions therein contained. 



CONVETANCnSTG AND LAW OF PROPERTY ACT, 1881. 113 

(13.) This section applies only if and as far as a contrary intention n & 45 Viot. 
is not expressed in the acknowledgment or undertaking. "• ^^' °- ^ 

(14.) This section applies only to an acknowledgment or undertaking 
given, .or a liability respecting documents incurred,, after the com- 
mencement of this Act. 

III. — Leases. 

[Sect. 10 provides that rent and the benefit of the lessee's covenants shall run Leases. 
with the reversion.] 

[Sect. 11 provides that the obligation of the lessor's covenants shall run with 
the reversion.] 

[Sect. 12 provides for the apportionment of conditions on severance, &c.] 

[Sect. 13 provides, that on a snb-demise the title to the leasehold reversion shall 
not be required.] 

Forfeiture. 
14. — (1.) A right of re-entry or forfeiture under any proviso or Restrictions 

stipulation in a lease, for a breach of any covenant or condition in the °'^ and relief 
■*■ . „ . aprainst f or- 

lease, shall not be enforceable, by action or otherwise, unless and feiture of 

until the lessor serves on the lessee a notice specifying the particular leases. 
breach complained of and, if the breach is capable of remedy, re- 
quiring the lessee to remedy the breach, and, in any ease, requiring 
the lessee to make compensation in money for the breach, and the 
lessee fails, within a reasonable time thereafter, to remedy the breach, 
if it is capable of remedy, and to make reasonable compensation in 
money, to the satisfaction of the lessor, for the breach (c). 

(c) See Ex parte Gould, "W. N. (1884), 154 ; Scott v. Matthew Brown f Co., W. N. 
(1884), 209. 

(2.) Where a lessor is proceeding, by action or otherwise, to enforce 
such a right of re-entry or forfeiture, the lessee may, in the lessor's 
action, if any, or in any action brought by himself, apply to the 
Court for relief ; and the Court may grant or refuse relief, as the 
Court, having regard to the proceedings and conduct of the parties 
under the foregoing provisions of this section, and to aU. the other 
circumstances, thinks fit ; and in case of relief may grant it on such 
terms, if any, as to costs, expenses, damages, compensation, penalty, 
or otherwise, including the granting of an injunction to restrain any 
like breach in the future, as the Court, in the circumstances of each 
case, thinks fit (d). 

(d) This sub-section is not confined to breaches taking place after the Act, but 
extends to breaches committed before the Act, and to proceedings pending when it 
came into operation (Quilter v. Mapleaon, 9 Q. B. D. 672 ;.52 L. 3. Q.B. 44; 31 
W. R. 75 ; 47 L. T. 561). For a case in which, under special circumstances, and 
■where no proper notice had been given, equitable mortgagees of a lessee were 
relieved from a forfeiture, see North London Co. v. Jacques, W. N. (1883), 187 ; 
Jaoqitea v. Barrison, 12 Q. B. D. 136. Where the forfeiture had been incurred 
through breach of a covenant to repair, relief was granted on the terms of the 
defendant executing proper repairs and paying arrears of rent and costs {Bond v. 
Freke W. N. (1884), 47). Where the right of renewing a lease for Uves had been 
lost by non-payment of renewal fees, though demanded by the reversioners, the 
Court refused to relieve (Ruttledge v. Whelm, 10 L. R. Ir. 263) ; and see Scott v. 
Matthew Broun ^ Co., W. N. (1884), 209. 

nr I 



114 CONTEYANCINa AND LAW OP PROPERTY ACT, 1881. 

44 & 45 Viotj (3.) Por the purposes of this section a lease includes an original or 



derivative under-lease, also a grant at a fee farm rent, or securing 
a rent by condition ; and a lessee includes an original or derivative 
under-lessee, and the heirs, executors, administrators, and assigns of 
a lessee, also a grantee under such, a grant as aforesaid, his heirs and 
assigns ; and a lessor includes an original or derivative under-lessor, 
and the heirs, executors, administrators, and assigns of a lessor, also 
a grantor as aforesaid, and his heirs and assigns. 

(4.) This section applies although the proviso or stipulation under 
which the right of re-entry or forfeiture accrues is inserted in the lease 
in pursuance of the directions of any Act of Parliament. 

(5.) For the purposes of this section a lease limited to continue as 
long only as the lessee abstains from committing a breach of covenant 
shall be and take effect as a lease to continue for any longer term for 
which it could subsist, but determinable by a proviso for re-entry on 
such a breach. 

(6.) This section does not extend — 

(i.) To a covenant or condition against the assigning, under-letting, 
parting with the possession, or disposing of the land leased ; 
or to a condition for forfeiture on the bantruptcy of the 
lessee, or on the taking in execution of the lessee's interest ; 
or 
(ii.) In case of a mining lease, to a covenant or condition for allow- 
ing the lessor to have access to or inspect books, accounts, 
records, weighing, machines or other things, or to enter or 
inspect the mine or the workings thereof. 
(7.) The enactments described in Part I. of the Second Schedule to 
this Act are hereby repealed. 

(8.) This section shall not affect the law relating to re-entry or 
forfeiture or relief in case of non-payment of rent. 

(9.) This section applies to leases made either before or after the 
commencement of this Act, and shall have effect notwithstanding any 
stipulation to the contrary. 

IV. — ^MoETaAGES. 

Obligation on 16, — (1.) Where a mortgagor is entitled to redeem, he shall, by 

toansfe^S- ° virtue of this Act, have power to require the mortgagee, instead of 

stead of re- re-conveying, and on the terms on which he would be bound to 

conveying. re-convey, to assign the mortgage debt and convey the mortgaged 

property to any third • person, as the mortgagor directs ; and the 

mortgagee shall, by virtue of this Act, be bound to assign and convey 

accordingly (e). 

(«) See now Conveyancing Act, 1882, s. 12, infra, and note thereto. A tenant 
for life of mortgaged premises, who has failed to keep down the interest, and who 
has obtained the usual order permitting him to redeem, is not entitled as of right 
to require the mortgagee to transfer to a third person {Alderaon v. Elgey, 26 Ch. D. 
567). 

(2.) This section does not apply in the case of a mortgagee being or 
having been in possession. 



CONVEYANCING AND LAW OP PROPERTY ACT, 1881.' 115 

(3.) This section applies to mortgages made either before or after 44 & 45 Viot. 
the commencement of this Act, and shall have effect notwithstanding °- '^^' ^- ^°- 
any stipulation to the contrary. 

[Sect. 16 empowers the mortgagor to inspect tie title deeds.] 

l'- — (!•) A mortgagor seeking to redeem any one mortgage, shall, Restriction 
by virtue of this Act, be entitled to do so, without paying any money tSn oTmort- 
due under any separate mortgage made by him, or by any person gages, 
through whom he claims, on property other than that comprised in the 
mortgage which he seeks to redeem (/). _ 

(2.) This section applies only if and as far as a contrary intention is 
not expressed in the mortgage deeds or one of them. 

(3.) This section applies only where the mortgages or one of them 
are or is made after the commencement of this Act. 

{/) In an action to foreclose two mortgages the mortgagor cannot redeem either 
estate without paying the whaie costs of the action (Clapham v. Andrews, 27 Ch. D. 
679). 

The recent tendency of the Courts (a^art from this Act) has been to restrict the 
doctrine of consoUdatiou ; see Jennings v. Jordan, 6 App. Cas. 698 ; Barter v. 
Colman, 19 Ch. D. 630 ; Ee Raggett, 16 Ch. D. 117 ; Cummins v. Fletcher, U Ch. D. 
699. 

[Sect. 18 gives power to the person in possession, whether mortgagor or mort- 
gagee, to make leases ; see £e Nugent, W. N. (1883), 147.] 

[Sect. 19 provides that a mortgagee, where the mortgage is made by deed, shall 
have power (i) to seU ; (ii) to insure ; (iii) to appoint a receiver (see Tillett v. Nixon, 
25 Ch. D. 238; Bayly v. Went, W. N. (1884), 197); (iv) if in possession, to cut 
and sell timber.] 

[Sect. 20 provides that the power of sale shall not be exercised unless 
(i) Notice has been given to pay off the principal, and default has been made for 
three months ; or (ii) interest is two months in arrear ; or (iii) there has been a breach 
of some provision in the mortgage other than the covenants for payment of principal 
and interest.] 

[Sect. 21 relates to conveyance, &c. on an exercise of the power of sale, and 
prescribes the application of the purchase-money.] 

[Sect. 22 empowers the mortgagee to give receipts.] 

[Sect. 23 relates to the amount and application of the insurance money.] 

[Sect. 24 deals vrith the appointment, powers, remuneration, and duties of the 
receiver, who is to be deemed the agent of the mortgagor. Where an action is 
pending the receiver should be appointed by the Court rather than by the mortgagee 
imder the Act (IMlett v. Nixon, 25 Ch. D. 238). If the mortgagee has appointed a 
receiver the mortgagor will not be allowed to distrain for rent due from the tenants 
{Bayly v. Went, W. N. (1884), 197).] 

Action respecting Mortgage. 

25. — (1.) Any person entitled to redeem mortgaged property may Saleofmort- 
have a judgment or order for sale instead of for redemption in an |g^y^i^aotion 
action brought by him either for redemption alone, or for sale alone, for fore- 
or for sale or redemption in the alternative. closure, &o. 

(2.) In any action, whether for foreclosure, or for redemption, or for 
sale, or for the raising and payment in any manner of mortgage money, 
the Court, on the request of the mortgagee, or of any person interested 
either in the mortgage money or in the right of redemption, and, not- 
withstanding the dissent of any other person, and notwithstanding 

i2 



116 



CONVETANCING AND LAW OP PROPERTY ACT, 1881. 



44 & 45 Vict, 
c. 41, 8. 25. 



15 & 16 Viot. 
c. 86, s. 48. 



Order for 



Devolution of 
trust and 
mortgage 



that the mortgagee or any person so interested does not appear in the 
action, and without allowing any time for redemption or for pa3mient 
of any mortgage money, may, if it thinks fit, direct a sale of the mort- 
gaged property, on such terms as it thinks fit, including, if it thinks 
fit, the deposit in Court of a reasonahle sum fixed by the Court, to 
meet the expenses of sale and to secure performance of the terms. 

(3.) But, in an action brought by a person interested in the right of 
redemption and seeking a sale, the Court may, on the application of 
any defendant, direct the plaintiff to give such security for costs as the 
Court thinks fit, and may give the conduct of the sale to any defendant, 
and may give such directions as it thinks fit respecting the costs of the 
defendants or any of them. 

(4.) In any case within this section the Court may, if it thinks fit, 
direct a sale without previously determining the priorities of incum- 
brancers. 

(5.) This section applies to actions brought either before or after the 
commencement of this Act (g). 

(6.) The enactment described in Part U. of the second schedule to 
this Act is hereby repealed. 

(7.) This section does not extend to Ireland. 

(ff) The Court has power at any time before foreclosure absolute to order a sale 
{Union £mk v. Ingram, 20 Oh. D. 463 ; 51 L. J. Ch. 508 ; 30 W. R. 375 ; 46 L. T. 
507 ; Weston v. Davidson, W. N. (1882), 28 ; South Western Sank y. Turner, 31 W. R. 
113). As to the form of order where the mortgagor has not appeared, see Wade v. 
WiUm, 22 Ch. D. 236 ; 52 L. J. Ch. 399 ; 31 W. R. 237 ; 47 L. T. 696 ; 8outh\ 
.Western Bank v. Tv/rner. Although a sale may be directed in a foreclosure action 
•without the plaintifi's consent, even where the mortgaged property is only an equity 
of redemption, and there are prior mortgagees not parties, a sale will not be directed 
at the request of a defendant who will not give security {Cripps v. Wood, 51 L. J. 
Ch. 684). 

Where the application for a sale was made by the defendant, the mortgagor, after 
the time appointed for the payment of the mortgage money, the Court directed that 
on the defendant paying within one month into Court the sum of 1501. as a deposit 
to meet the expenses of sale, and also paying the plaintiff's costs of the application, 
there should be a sale of the property, but otherwise a foreclosure ( Weston v. David- 
son, W. N. (1882), 28). Where there were several mortgages a sale was directed, 
in a redemption action, upon the application, soon after the issue of the writ of 
summons, of the plaintiff who was the owner of the equity of redemption ; but it 
was held that a reserved price large enough to cover what was due to mortgagees 
who opposed the sale must be fixed, and that the plaintiff must give security for the 
costs of the sale, the conduct of which was given to him, and which was directed to 
take place out of Court, the proceeds of sale being directed to be brought into Court 
{Woolky V. Colman, 21 Ch. D. 169). A tenant in common who has mortgaged his 
share to another tenant in common cannot enforce a partition or sale of the whole 
property against the will of the mortgagee without paying off the mortgage (Gibis 
V. Sai/don, 30 W. R. 726). 

An equitable mortgagee by deposit may have a sale though tiiere is no me- 
morandum of deposit and no agreement to execute a legal mortgage (Oldham v. 
Stringer, W. N. (1884), 235). 

V. — •STATrrORT MOBTGAGB. 

[Sects. 26 — 29 provide for forms of statutory mortgages, transfers and recon- 
veyances.] 

"VI. — Trust aitd Mortgage Estates on Death. 
30.— (1.) Where an estate or interest of inheritance, or limited to the 
heir as special occupant, in any tenements or hereditaments, corporeal 



CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 117 

or incorporeal, is vested on any trust, or hj way of mortgage, in any 44 & 45 Viot. 
person solely, tke same stall, on his death, notwithstanding any testa- °- *^' ^- ^^- 
mentary disposition, devolve to and hecome vested in his personal estates on 
representatives or representative from time to time, in like manner as '^^^™- 
if the same were a chattel real vesting in them or him ; and accord- 
ingly all the like powers, for one only of several joint personal repre- 
sentatives, as well as for a single personal representative, and for all 
the personal representatives together, to dispose of and otherwise deal 
with the same, shall belong to the deceased's personal representatives 
or representative from time to time, with all the like incidents, but 
subject to all the like rights, equities, and obligations, as if the same 
were a chattel real vesting in them or him ; and, for the purposes of 
this section, the personal representatives, for the time being, of the 
deceased, shall be deemed in law his heirs and assigns, within the 
meaning of all trusts and powers (A). 

(2.) Section four of thg Vendor and Purchaser Act, 1874, and section 37 & 38 Viot. 
forty-eight of the Land Transfer Act, 1875, are hereby repealed («'). ' , ' „. , 

(3.) This section, including the repeals therein, applies only in cases c. 87. 
of- death after the commencement of this Act. 

(A) The section applies to copyholds {Be Sughes, W. N. (1884), 53). Qu. What 
becomes of the legal estate when there is no personal representative P See £e Tilling, 
26 Oh. D. 432. 

(i) See these sections, ante, p. 107. 

VII. — TaUSTEES AND ExECUTOES. 

31. — (1.) Where a trustee, either original or substituted, and Appointment 
whether appointed by a Court or otherwise, is dead, or remains out trustees, 
of the United Kingdom for more than twelve months, or desires to be vesting of 
discharged from the trusts or powers reposed in or conferred on him, perty, &c. 
or refuses or is unfit to act therein, or is incapable of acting therein, 
then the person or persons nominated for this purpose by the instru- 
ment, if any, creating the trust {k), or if there is no such person, or no 
such person able and willing to act, then the surviving or continuing 
trustees or trustee for the time being, or the personal representatives 
of the last surviving or continuing trustee {I), may, by writing, appoiiit 
another person or other persons to be a trustee or trustees in the place 
of the trustee dead, remaining out of the United Kingdom, desiring to 
be discharged, refusing or being unfit, or being incapable, as afore- 
said (m). 

(A) See Se Vallcer, 24 Ch. D. 698. 

(l) The representative of a deceased trustee is not bound, at the request of the 
cestui que trust, to exercise the power {Re Sarah Knight, 26 Ch. D. 82). 

(m) Where the power given by this section can be exercised, application ought not 
to be made to the Court (iJe Gibbon, W. N. (1882), 12; 30 W. R. 287). 

(2.) On an appointment of a new trustee, the number of trustees 
may be increased. 

(3.) On an appointment of a new trustee, it shall not be obligatory 
to appoint more than one new trustee, where only one trustee was 
originally appointed, or to fill up the original number of trustees. 



L18 COKVETANOING- AND LAW OP PROPERTY ACT, 1881. 

'A & 45 Viot. where more than two trustees were originally appointed ; but, except 
c. 41, B. 31. -ppiiere only one trustee was originally appointed, a trustee shall not be 
discharged under this section from his trust unless there wiU be at 
least two trustees to perform the trust. 

(4.) On an appointment of a new trustee any assurance or thing 
requisite for vesting the trust property, or any part thereof, jointly in 
the persons who are the trustees, shall be executed or done. 

(5.) Every new trustee so appointed, as well before as after all the 
trust property becomes by law, or by assurance, or otherwise, vested 
in him, shall have the same powers, authorities, and discretions, and 
may in aU respects act, as if he had been originally appointed a trustee 
by the instrument, if any, creating the trust. 

(6.) The provisions of this section relative to a trustee who is dead 
include the case of a person nominated trustee in a will but dying 
before the testator (U) ; and those relative to a continuing trustee in- 
clude a refusing or retiring trustee, if willing to act in the execution of 
the provisions of this section. 

(7.) This section applies only if and as far as a contrary inten- 
tion (mm) is not expressed in the instrument, if any, creating the trust, 
and shaU have effect subject to the terms of that instrument and to any 
provisions therein contained. 

(8.) This section applies to trusts created either before or after the 
commencement of this Act. 

{U) If all the trustees predecease the testator, then (in the absence of an express 
power) recourse must be had to the Court (Se Orde, 24 Ch. D. 271 ; Ee Lightbody, 
W. N. (1885), 3). 

[mm) See Gecil v. Lcmgdon, 28 Ch. D. 1. 

Retirement 32. — (1.) Where there are more than two trustees, if one of them by 

)f trustee. deed declares that he is desirous of being discharged from the trust, 
and if his co-trustees and such other person, if any, as is empowered 
to appoint trustees, by deed consent to the discharge of the trustee, 
and to the vesting in the co-trustees alone of the trust property, then 
the trustee desirous of being discharged shall be deemed to have 
retired from the trust, and shall, by the deed, be discharged therefrom 
under this Act, without any new trustee being appointed in his place. 
(2.) Any assurance or thing requisite for vesting the trust property 
in the continuing trustees alone shall be executed or done. 

(3.) This section applies only if and as far as a contrary intention is 
not expressed in the instrument, if any, creating the trust, and shall 
have effect subject to the terms of that instrument and to any provi- 
sions therein contained. 

(4.) This section applies to trusts created either before or after the 

commencement of this Act. 

Powers of new 33- — (1-) Every trustee appointed by the Court of Chancery, or by 

"^^t^d^' *^® Chancery Division of the Court, or by any other Court of competent 

3ourt. jurisdiction, shall, as well before as after the trust property becomes 

by law, or by assurance, or otherwise, vested in him, have the same 

powers, authorities, and discretions, and may in all respects act as if 



CONVEYANCINa AND LAW OF PBOPERTY ACT, 1881. 119 

lie had been originally appointed a trustee by the instrument, if any, 44 & 46 Vict, 
creating the trust. °- ^^> °- ^^- 

(2.) This section applies to appointments made either before or after 
the commencement of this Act. 

34. — (1.) Where a deed by which a new trustee is appointed to Vesting of 
perform any trust contains a declaration by the appointor to the effect i^^^ew^r ^"^ ^ 
that any estate or interest in any land subject to the trust, or in any continmng 
chattel so subject, or the right to recover and receive any debt or other *™^*^^^' 
thing in action so subject, shall vest in the persons who by virtue of 
the deed become and are the trustees for performing the trust, that 
declaration shall, without any conveyance or assignment, operate to 
vest in those persons, as joint tenants, and for the purposes of the 
trust, that estate, interest, or right. 

(2.) "Where a deed by which a retiring trustee is discharged under 
this Act contains such a declaration as is in this section mentioned by 
the retiring and continuing trustees, and by the other person, if any, 
empowered to appoint trustees, that declaration shall, without any 
conveyance or assignment, operate to vest in the continuing trustees 
alone, as joint tenants, and for the purposes of the trust, the estate, 
interest, or right to which the declaration relates. 

(3.) This section does not extend to any legal estate or interest in 
copyhold or customary land, or to land conveyed by way of mortgage 
for securing money subject to the trust, or to any such share, stock, 
annuity or property as is only transferable in books kept by a com- 
pany or other body, or in manner prescribed by or under Act of Par- 
liament (ra). 

(4.) For purposes of registration of the deed in any registry, the 
person or persons making the declaration shall be deemed the con- 
veying party or parties, and the conveyance shall be deemed to be 
made by Th'tti or them under a power conferred by this Act. 

(5.) This section applies only to deeds executed after the commence- 
ment of this Act. 

(«) See Me Sarrison, W. N. (1883), 31. 

[Sect. 35 provides that trustees with a trust for or power of sale under an instru- 
ment coming into operation since the Act, may sell in lots, by auction or private 
contract, subject to special conditions, &c.] 

[Sect. 36 enables trustees to give receipts for money or personal property payable 
or transferable to them.] 

[Sect. 37 empowers executors and trustees to compound, and compromise debts 
and claims.] 

[Sect. 38 provides that powers or trusts given since the Act totwo or more 
executors or trustees jointly may be exercised by the survivors or survivor of them.] 

VI 1 1. — Maebied WoMBiir. 

39_ n.) Notwithstanding that a married woman is restrained from Power for 

anticipation, the Court may, if it thinks fit, where it appears to the ^°^gt°of™^ 



120 



CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 



44 & 45 Viot. Court to be for her benefit, by judgment or order, ■witb. bar consent, 

"• ^^' "• ^^- bind ber interest in any property (o). 
married (2.) Tbis section applies only to judgments or orders made after tbe 

woman. commencement of tbis Act. 



Where order 
binding mar- 
ried woman's 
interest made. 



(o) An order binding the interest of a married woman will only be made where it 
is clear that the remoyal of the restraint will be for her benefit, and not merely for 
the benefit of her husband (Tamplm v. Miller, W. N. (1882), 44 ; 30 W. R. 422). 
The order has been made where land in which a married woman had an interest 
settled to her separate use without power of anticipation, having been sold, part of 
the proceeds of the sale was to be paid to a mortgagee {Ee Landfield, Landfield v. 
Zandfield, 30 W. R. 377) ; where the sanction of the Court was required to a com- 
promise of the claims of a married woman to trust property, to which she was 
entitled for her separate use without power of anticipation [Tamplin v. Miller) ; 
and where a married woman was entitled for her separate use for life without 
power of anticipation to the income of a fund in Court, to the corpus of which, in 
the event which had happened, she, in default of the exercise of a testamentary 
power of appointment vested in herself, was entitled absolutely, the Court (she 
having contracted a number of debts, for payment of which her creditors were 
pressing her and causing her great annoyance) considered that the restraint on 
anticipation ought to be removed, and ordered part of the fund to be paid out to 
her in order to enable her to pay her debts [Hodges v. Sodges, 30 W. R. 483 ; 20 
Ch. D. 749). See also Ex parte Thompson, W. N. (1884), 28 ; Mvsgraiiey. Sandetnan, 
48 L. T. 215 ; Sedgwiclc v. Thomas, 48 L. T. 100. An order has been made under 
special circumstances authorizing the sale of a married woman's life interest in 
order to provide funds for the purpose of emigration ; see Be Flood, 1 1 L. R. Ir. 
355, where the form of the order is given. But it must be clearly shown that the 
removal of the restraint will benefit the married woman (Re Warren, W. N. (1883), 
125 ; 52 L. J., Ch. 928, where the object was to put an end to a marriage settle- 
ment on the ground that the wife was past child-bearing, and the Court of Appeal 
refused to allow it) . As to married woman tenant for life, see the Settled Land 
Act, 1882, s. 61, imfra. 

The order is made under the general power of the Court, conferred by the statute, 
and where made in any pending action or proceeding it need not be intituled in the 
Act (Ee Landfield, Landfield v. Zandfleld, 30 W. R. 377). The application for the 
order is, where the subject of an independent proceeding, made by summona 
(s. 69 (3) ; Ee Ulhvall, W. N. (1882), 6 ; 30 W. R. 243). 

[Sect. 40 empowers a married woman, whether an infant or not, to appoint an 
attorney.] 

IX. — ^Intants. 

Sales and 41. Wbere a person in bis own right seised of or entitled to land for 

half^of°Sif ^"t ^^ ©state in fee simple, or for any leasehold interest at a rent, is an 

infant, tbe land shall be deemed to be a settled estate within tbe 

Settled Estates Act, 1877 {p). 

(p) See Ee Liddell, W. N. (1882), 183 ; 31 W. R. 238. 

42. — (1.) If and as long as any person who would but for this 
section be beneficially entitled to the possession of any land is an 
infant, and being a woman is. also unmarried, tbe trustees appointed 
for this purpose by the settlement, if any, or if there are none so 
appointed, then the persons, if any, who are for tbe time being under 
tbe settlement trustees with power of sale of tbe settled land, or of 
part thereof, or with power of consent to or approval of tbe exercise of 
such a power of sale, or if there are none, then any persons appointed 
as trustees for this purpose by the Oourt, on tbe application of a 
guardian or next friend of the infant, may enter into and continue in 
possession of the land ; and in every such case tbe subsequent provi- 
sions of tbis section shall apply. 

[Sub-sections 2 and 3 confer extensive powers of management on the trustees.] 



Form of 
order. 

Applicatioa 
for order ; 
how made. 



owner, 

40 & 41 Vict, 
0.18. 



of land and 
receipt and 
application 
of income 
during 
minority. 



CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 121 

(4.) The trustees may apply at discretion any income which, in the exercise of such 4i & 45 Vict, 
discretion, they deem proper, according to the infant's age, for his or her mainte- c. 41, b. 42. 

njince, education, or benefit, or pay thereout any money to the infant's parent or 

guardian, to he applied for the same purposes. 

(5.) The trustees shall lay out the residue of the income of the land in investment 
on securities on which they are by the settlement, if any, or by law, authorized to 
invest trust money, with power to vary investments ; and shall accumulate the in- 
come of the investments so made in the way of compound interest, by from time to 
time similarly investing such income and the resulting income of investments ; and 
shall stand possessed of the accumulated fund arising from income of the land and 
from investments of income on the trusts following (namely) : 

(i.) If the infant attains the age of twenty-one years, then in trust for the infant ; 
(ii.) If the infant is a woman and marries while an infant, then in trust for her 
separate use, independently of her husband, and so that her receipt after 
she marries, and lliough stUI an infant, shall be a good discharge ; but 
(iii.) If the infant dies while an infant, and being a woman without having been 
married, then, where the infant was, under a settlement, tenant for life, or 
by purchase tenant in tail or tail male or tail female, on the trusts, if any, 
declared of the accumulated fund by that settlement ; but where no such, 
trusts are declared, or the infant has taken the land from which the accu- 
mulated fund is derived by descent, and not by purchase, or the infant is 
tenant for an estate in fee simple, absolute or determinable, then in trust for 
the infant's personal representatives, as part of the infant's personal estate ; 
but the accumulations, or afiy part thereof, may at any time be applied as if the same 
were income arising in the then current year. 

(6.) Where the infant's estate or interest is in an undivided share of land, the 
powers of this section relative to the land may be exercised jointly with persons 
entitled to possession of, or having power to act in relation to, the other undivided 
share or shares. 

(7.) This section applies only if and as far as a contrary intention is not expressed 
in tile instrument under which the interest of the infant arises, and shall have effect 
subject to the terms of that instrument and to the provisions therein contained. 

(8.) This section applies only where that instrument comes into operation after the 
commencement of this Act. 

43. — (1.) Where any property is held by trustees in trust for an Application 
infant, either for life, or for any greater interest, and whether ahso- ^o™*^!^ °* 
lutely, or contingently on his attaining the age of twenty-one years, or property of 
on the occurrence of any event before his attaining that age, the ^°f?^* ^°^ 
trustees may, at their sole discretion, pay to the infant's parent or &o. 
guardian, if any, or otherwise apply for or towards the infant's main- 
tenance, education, or benefit, the income of that property, or any part 
thereof, whether there is any other fund applicable to the same pur- 
pose, or any person bound by law to provide for the infant's mainte- 
nance or education, or not {q). 

Ig) Trustees cannot under this section apply the income of an infant's contingent 
legacy for the benefit of the infant, unless the income will go along with the capital 
of the legacy if and when such capital vests (Me Judkin, 25 Oh. D. 743) ; and seeiJe 
Diekaon W. N. (1884), 235. Under this and the next sub-section trustees may 
apply past accumulations of income in payment of past maintenance {Se Fitts, 
W. N. (1884), 225). 

(2.) The trustees shall accumulate all the residue of that income in 
the way of compound interest, by investing the same and the resulting 
income thereof from time to time on securities on which they are by 
the settlement, if any, or by law, authorized to invest trust money, and 
shall hold those accumulations for the benefit of the person who ulti- 
mately becomes entitled to the property from which the same arise {qq) ; 
but so that the trustees may at any time, if they think fit, apply those 
accumulations, or any part thereof, as if the same were income arising 
in the then current year. 

(jy) See Re BuchUy, 22 Oh. D. 583. 



122 



CONVEYANCING AND LAW OP PROPERTY ACT, 1881. 



44 & 45 Viot. 
0. 41, s. 43. 



Deposit of 

OTiginal 

instruments 

creating 

powers of 

attorney. 



(3.) This section applies only i£ and as far as a contrary intention (r) 
is not expressed in the instrument tinder which the interest of the 
infant arises, and shall have effect subject to the terms of that instru- 
ment and to the provisions therein contained. 

(4.) This section applies whether that instrument comes into opera- 
tion before or after the commencement of this Act. 

(r) A direction for accumulation of income until the happening of the contdngeney 
on which infants are to become entitled does not show a " contrary intention " (J2e 
Thatcher, 26 Ch. D. 426). 

X. — EiEnt-Chabges and other Ajstnttal Sums. 

[Sect. 44 provides remedies for recovery of annual siuns charged on land ; it is 
limited to the case of instruments coming into operation since the Act.] 

[Sect. 45 provides for the redemption of quit rents and other perpetual charges.] 

XI. — ^Powers of Attob.net. 
[Sect. 46 provides that an attorney may execute his power in his own name.] 

[Sect. 47 provides that acts done iu pursuance of a power of attorney without 
"notice of revocation shall be good.] 

48, — (1.) An instrument creating a power of attorney, its execution 
being verified by affidavit, statutory declaration, or other sufficient 
evidence, may, with the affidavit or declaration, if any, be deposited 
in the Central Office of the Supreme Court of Judicature. 

(2.) A separate file of instruments so deposited shall be kept, and 
any person may search that file, and inspect every instrument so 
deposited, and an office copy thereof shall be delivered out to him on 
request. 

(3.) A copy of an instrument so deposited may be presented at the 
office, and may be stamped or marked as an office copy, and when so 
stamped or marked shall become and be an office copy. 

(4.) An office copy of an instrument so deposited shall without 
further proof be sufficient evidence of the contents of the instrument 
and of the deposit thereof in the Central Office. 

(5.) General Eules may be made for purposes of this section, regu- 
lating the practice of the Central Office, and prescribing, with the 
concurrence of the Commissioners of her Majesty's Treasury, the 
fees to be taken therein [rr). 

(6.) This section applies to instruments creating powers of attorney 
executed either before or after the commencement of this Act. 

{j-r) SeeiJos*, p. 133. 

XII. — CoNSTRTJOTION AND MfPEOT OF DeEDS AND OTHER InSTRTJMENTS. 
[Sect. 49 renders the use of the word " grant" unnecessary.] 

[Sect. 50 provides that freeholds or a thing in action may be conveyed by a 
person to himself and another jointly, and by a husband to his wife, and by a wife 
to her husband, alone or jointly with another person.] 

[Sect. 51 provides that the words "in fee simple," and " in tail," may be used 
instead of the old words of limitation.] 

[Sect. 52 authorises the release of powers whether coupled with an interest or 
not. See Re Eyre, 49 L. T. 289 ; W. N. (1883), 153 ; Conv. Act, 1882, s. 6, 
poit, p. 129.] 



CONVEYANCINa AND LAW OF PROPERTY ACT, 1881. 123 

[Sect. 53 relates to the construction of supplemental or annexed deeds.] 44 & 46 Viot. 
[Sect. 54 enacts that a receipt in the body of a deed shall be sufficient.] _! — L 



[Sect. 55 provides that a receipt in a deed or endorsed upon, it, shall in favour of 
a subsequent purchaser, be sufficient evidence of payment.] 

S6. — (1.) Where a solicitor produces a deed, having in the body Receipt in 
thereof or iadorsed thereon a receipt for consideration money or other ^lojaed 
consideration, the deed being executed, or the indorsed receipt beiag authority for 
signed, by the person entitled to give a receipt for that consideration, ^^^®^* *° 
the deed shall be sufficient authority to the person liable to pay or 
give the same for his paying or giving the same to the solicitor, with- 
out the solicitor producing any separate or other direction or authority 
m that behalf from the person who executed or signed the deed or 
receipt. 

(2.) This section appUes only in cases where consideration is to be 
paid or given after the commencement of this Act (s). 

(s) This section does not authorize fiduciary vendors to require the purchaser to Sales by 
pay the purchase-money to their solicitor on production of a duly-executed con- trustees, 
veyance in cases -where before the Act they could not have required the purchaser 
to pay the purchase-money to their solicitor under a special authority (Se 
Bellamy, 24 Ch. D. 387 ; Me Flower and Metropolitan Board of Works, 27 Ch. D. 
592). 

[Sect. 57 provides for statutory forms of deeds.] 

[Sects. 58 — 60 relate to the construction of covenants.] 

[Sect. 61 dispenses vrith the necessity for the joint account clause in mortgages.] 

[Sect. 62 relates to the grant of easements, &o., by -way of use.] 

[Sect. 63 dispenses with the necessity for the " all the estate" clause.] 

[Sect. 64 relates to the construction of the covenants, &c., implied by the Act.] 

Xin. — ^LoNG Terms. 

[Sect. 65 authorises the enlargement in certain cases of long terms of years into 
fee simple estates. See Se Smith and Stott, 31 W. R. 411. The section is 
amended by sect. 11 of the Conv. Act, 1882.] 

XIV. — Adoption of Act. 

66. — (1.) It is hereby declared that the powers given by this Act to any person, Protection of 
and the covenants, provisions, stipulations, and words which under this Act are to solicitor and 
be deemed included or implied in any instrument, or are by this Act made appli- trustees 
cable to any contract for sale or other transaction, are and shall be deemed in law adopting 
proper powers, covenants, provisions, stipulations, and words, to be given by or to Act. 
be contained in any such instrument, or to be adopted in connexion with, or applied 
to, any such contract or transaction ; and a solicitor shall not be deemed guUty of 
neglect or breach of duty, or become in any way liable, hy reason of his omitting, 
in good faith, in any such instrument, or in connexion with any such contract or 
transaction, to negative the giving, inclusion, implication, or application of any of 
those powers, covenants, provisions, stipulations, or words, or to insert or apply 
any others in place thereof, in any case where the provisions of this Act would 
allow of his doing so. 

(2.) But nothing in this Act shall be taken to imply that the insertion in any 
such instrument, or the adoption in coimexion with, or the application to, any con- 
tract or transaction, of any further or other powers, covenants, provisions, stipula- 
tions, or words is improper. 

(3.) Where the soUoitor is acting for trustees, executors, or other persons in a 
fiduciary position, those persons shall also be protected in like manner. 

(4.) Where such persons are acting without a solicitor, they shall also be pro- 
tected in Uke manner. 



124 CONVEYANCING AND LAW OF PEOPEBTT ACT, 1881. 

a & 45 Vict. XV. MiSCBLLANEOTJS. 

"• ' "• 67.— (1.) Any notice required or authorized by this Act to be served shall be in 

Eegulations ■writing. 

respecting (2-) Any notice required or authorized by this Act to be served on a lessee or 

notice. mortgagor shall be sufEoient, although only addressed to the lessee or mortgagor 

by that designation, without his name, or generally to the persons interested, with- 
out any name, and notwithstanding that any person to be affected by the notice is 
absent, under disability, unborn, or unascertained. 

(3.) Any notice required or authorized by this Act to he served shall be suffi- 
ciently served if it is left at the last-known place of abode or business in the United 
Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, 
or, in case of a notice required or authorized to be served on a lessee or mortgagor, 
is affixed or left for him on the land or any house or building comprised in the 
lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or 
counting-house of the mine. 

(4.) Any notice required or authorized by this Act to be served shall also be 
sufficiently served, if it is sent by post in a registered letter addressed to the lessee, 
lessor, mortgagee, mortgagor, or other person to be served, by name, at the afore- 
said place of abode or business, office, or coiuiting-house, and if that letter is not 
returned through the post-office undelivered ; and that service shall be deemed to 
be made at the time at which the registered letter would in the ordinary course be 
delivered. 

(5.) This section does not apply to notices served in proceedings in the Court. 
Short title of 68. The Act described in Part II. of the First Schedule to this Act shall, by 
5 & 6 WUl. 4, virtue of this Act, have the short title of the Statutory Declarations Act, 1835, and 
u. 62. may be cited by that short title in any declaration made for any purpose under or 

by virtue of that Act, or in any other document, or in any Act of Parliament. 

XVI. — CoTJBT ; Proceditrb ; Oedees. 

Eegulations 69. — (1.) AH matters within the jurisdiction of the Court under this 

respecting ^^^ shall, subject to the Acts regulating the Court, be assigned to the 
Court and Chancery Division of the Court. 

applications. ^2.) Payment of money into Court shall effectually exonerate there- 
from the person making the payment. 

(3.) Every application to the Court shall, except where it is other- 
wise expressed, be by summons at chambers. 

(4.) On an application by a purchaser notice shall be served in the 
first instance on the vendor. 

(5.) On an application by a vendor notice shall be served in the 
first instance on the purchaser. 

(6.) On any application notice shall be served on such persons, if 
any, as the Court thinks fit. 

(7.) The Court shall have fuU power and discretion to make such 

order as it thinks fit respecting the costs, charges, or expenses of all 

or any of the parties to any application. 

39 & 40 "Vict. (8.) General Rules for purposes of this Act shall be deemed Bules 

c. 69, B. 17. of Court within section seventeen of the Appellate Jurisdiction Act, 

1876, and may be made accordingly. 

(9.) The powers of the Court may, as regards land in the County 
Palatine of Lancaster, be exercised also by the Court of Chancery of 
the County Palatine ; and Eules for regulating proceedings in that 
Court shall be from time to time made by the Chancellor of the Duchy 
of Lancaster, with the advice and consent of a Judge of the High 
Court acting in the Chancery Division, and of the Vice-Chancellor of 
the County Palatine. 



CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 125 

(10.) General Eules, and Eules of tlie Court of Chancery of the 44 & 45 Viot. 
County Palatine, under thia Act maybe made at anytime after the °- ^^' ^- ^^- 
passing of this Act, to take effect on or after the commencement of 
this Act. 

70. — (1.) An order of the Court under any statutory or other juris- Orders of 
diction shall not as against a purchaser, be invalidated on the ground *^o^y' 5'°''' 
of want of jurisdiction, or of want of any concurrence, consent, notice, 
or service, whether the purchaser has notice of any such want or not. 

(2.) Thia section shall have effect with respect to any lease, sale, or 
other act under the authority of the Court, and purporting to be in 
pursuance of the Settled Estates Act, 1877, notwithstanding the ex- 40 & 41 Viot. 
ception in section forty of that Act, or to be in pursuance of any °- ^^> ^- *"• 
former Act repealed by that Act, notwithstanding any exception in 
such former Act. 

(3.) This section applies to all orders made before or after the com- 
mencement of this Act, except any order which has before the com- 
mencement of this Act been set aside or determined to be invalid on 
any ground, and except any order as regards which an action or pro- 
ceeding is at the commencement of this Act pending for having it set 
aside or determined to be invalid {t). 

{t) See Me Sail Dare, 21 Ch. D. 41. 

XVii. — Eepeais . 

71. — (1.) The enactments described in Part III. of the Second Schedule to this Repeal of 

Act are hereby repealed. enactments in 

(2.) The repeal by this Act of any enactment shall not affect the validity or in- Part III. of 

validity, or any operation, effect, or consequence, of any instrument executed or Second 

made, or of anything done or suffered, before the commencement of this Act, or Schedule • 

any action, proceeding, or thing then pending or uncompleted ; and every such restriction on 

action, proceeding, and thing may be carried on and completed as if there had been all repeals. 
no such repeal in this Aci ; but this prorision shall not be construed as qualifying 
the provision of this Act relating to section forty of the Settled Estates Act, 1877, 
or any former Act repealed by that Act. 

XVm. — ^Irelaud. 
[Sects. 72 and 73 relate only to Ireland.] 

SCHEDULES. 
THE FIRST SCHEDULE. 

AOTS AFFECTED. 

PaetI. 

1 & 2 Viot. c. 110. — ^An Act for abolishing arrest on mesne process in civil actions, 

except in certain oases ; for extending the remedies of creditors against the 
property of debtors ; and for amending the laws for the relief of ihsolvent 
debtors in England. 

2 & 3 Viot. c. 11. — ^An Act for the better protection of purchasers against judg- 

ments, crown debts. Us pendens, and fiats in bankruptcy. 
18 & 19 Viot. c. 15. — An Act for the better protection of purchasers against judg- 
ments, crown debts, cases of lis pendens, and life annuities or rentcharges. 

22 & 23 Viot. c. 35. — An Act to further amend the law of property and to relieve 

trustees. 

23 & 24 Viot. t. 38. — An Act to further amend the law of property. 

23 & 24 Vict. V. 115. — An Act to simplify and amend the practice as to the entry of 
satisfaction on Crown debts and on judgments. 



126 



OONVETANCINa AND LAW OF PEOPEE.TT ACT, 1881. 



44 & 45 Viot. 27 & 28 Viot. c. 112.— An Act to amend the la-w relating to future judgments, 
0. 41. statutes, and recognizances. 

28 & 29 Viot. 0. 104.— The Crown Suits, &o. Act, 1865. 

31 & 32 Vict. 0. 54.— The Judgments Extension Act, 1868. 

Pabt II. 

5. & 6 Will. 4. c. 62.— An Act to repeal an Act of the present session of Parliament, 
intituled "An Act for the more effectual abolition of oaths and affirmations 
taken and made in various Departments of the State, and to substitute declara- 
tions in lieu thereof ; and for the more entire suppression of voluntary and 
extra-judicial oaths and affidavits;" and to make other provisions for the 
abolition of unnecessary oaths. 



THE SECOND SCHEDULE. 

IIefeai.8. 

A description or citation of a portion of an Act is inclusive of the ■words, section, 
or other part, first or last mentioned, or otherwise referred to as forming the 
beginning, or as forming the end, of the portion comprised in the description or 
citation. 

Paet I. 

22 & 23 Vict. e. 35. . 
in part. 



23 & 24 Viot. u. 126. . 
in part. 



15 & 16 Vict. 0. 86. . 
in part. 



8 & 9 Viot. 0. 119, 



23 & 24 Viot. c. 145 . 
in part. 



An Act to further amend the law of \ j_ _„jj. . namelv 

property and to relieve trustees . . J -^ ' ^' 

Sections four to nine. 

The Common Law Procedure Act, ] ■ . . „„„„,„ 

jggQ ' I mpart; namely, — 

Section two. 

Pabt II. 

An Act to amend the practice and ) 

course of proceeding in the High > in part ; namely, — 
Court of Chanceiy ) 

Section forty-eight. 

Paet III. 

An Act to facilitate the conveyance 
of real property. 

An Act to give to trustees, mort- \ 

gageea, and others certain powers f . , , 

Sow commonly inserted in settle- pP^^rt; namely,- 
ments, mortgages, and mUs . , . , / 

Parts II. and III. (sections eleven to thirty). 



THE THIRD SCHEDULE. 
[This schedule contains the statutory mortgages referred to in Part V. of the Act.] 



THE FOURTH SCHEDULE. 
[This schedule contains the forms of deeds referred to in sect. 57.] 



CONVEYANCING ACT, 1882. ^27 



OONTETANCING ACT, 1882. 45 & 46 viot. 

0. 39. 
45 & 46 VICT. Cap. 39. 



An Act for further improving the Practice of Conveyancing; and for 
other imrposes. [10th August, 1882.] 

Be it enacted, &c. as foUows : — 

Preliminary. 
1. — (1.) This Act maybe cited as the Conveyancing Act, 1882; and Short titles; 
the Conveyancing and Law of Property Act, 1881 (in this Act referred °,^f^°^' 
to as the Conveyancing Act of 1881) and this Act maybe cited together extent; 
as the Conveyancing Acts, 1881, 1882. interpreta- 

(2.) This Act, except where it is otherwise expressed, shall commence 44 ^ 45 yjgt. 
and take effect from "knd immediately after the thirty-first day of c. 41. 
December, one thousand eight hundred and eighty-two, which time is 
in this Act referred to as the commencement of this Act. 
(3.) This Act does not extend to Scotland. 
(4.) In this Act and in the schedule thereto — 
(i.) Property includes real and personal property, and any debt, and 
any thing in action, and any other right or interest in the nature 
of property, whether in possession or not ; 
(ii.) Purchaser includes a lessee or mortgagee, or an intending pur- 
chaser, lessee, or mortgagee, or other person, who, for valuable 
consideration, takes or deals for property, and purchase has a 
meaning corresponding with that of purchaser ; 
(iii.) The Act of the session of the third and fourth years of King 3 & 4 Will. 4, 
William the Fourth (chapter seventy-four) " for the abolition of "" ^*' 
Pines and Eecoveries, and for the substitution of more simple 
modes of Assurance " is referred to as the Fines and Recoveries 
Act ; and the Act of the session of the fourth and fifth years of 4 & 5 Will. 4, 
King William the Fourth (chapter ninety-two) "for the abolition °" ®^" 
of Fines and Recoveries, and for the substitution of more simple 
modes of Assurance in Ireland" is referred to as the Fines and 
Recoveries (Ireland) Act. 

Searches. 
2. — (1.) Where any person requires, for purposes of this section. Official, nega- 
search to be made in the Central Office of the Supreme Court of oirtifioates of 
Judicature for entries of judgments, deeds, or other matters or docu- searolies for 

ments, whereof entries are required or allowed to be made in that office ]'^^&™™*8, 

"*■ crown aeots, 

by any Act described in Part I. of the First Schedule to the Con- &o. 

veyancing Act of 1881 (a), or by any other Act, he may deliver in the 

office a requisition in that behalf, referring to this section (5). 

(2.) Thereupon the proper officer shall diligently make the search 

required, and shall make and file in the office a certificate setting forth 



128 CONVEYANOINa ACT, 1882. 

45 & 46 Vict, the result thereof ; and office copies of that certificate shall be issued 

c. 39 o 2 

— '. — LJ !_ on requisition, and an office copy shall be evidence of the certificate. 

(3.) In favour of a purchaser, as against persons interested under or 
in respect of judgments, deeds, or other matters or documents, whereof 
entries are required or allowed as aforesaid, the certificate, according 
to the tenour thereof, shall be conclusive, affirmatively or negatively, 
as the case may be. 

(4.) Every requisition under this section shall be in writing, signed 
by the person making the same, specifying the name against which he 
desires search to be made, or in relation to which he requires an office 
copy certificate of result of search, and other sufficient particulars ; and 
the person making any such requisition shall not be entitled to a 
search, or an office copy certificate, untU he has satisfied the proper 
officer that the same is required for the purposes of this section. 

(5.) General rules shall be made for purposes of this section, pre- 
scribing forms and contents of requisitions and certificates, and regu- 
lating the practice of the office, and prescribing, with the concurrence 
of the Commissioners of her Majesty's Treasury, the fees to be taken 
therein ; which rules shall be deemed rules of Court within section 
39 & 40 Vict, seventeen of the Appellate Jurisdiction Act, 1876, as altered by section 
44&'45Viet iil'ieteen of the Supreme Court of Judicature Act, 1881, and may be 
u. 68. made, at any time after the passing of this Act, to take effect on or 

after the commencement of this Act (bb). 

(6.) If any officer, clerk, or person employed in the office commits, 
or is party or privy to, any act of fraud or coUusion, or is wilfully 
negligent, in the making of or otherwise in relation to any certificate 
or office copy under this section, he shall be guilty of a misdemeanor. 

(7.) Nothing in this section or in any rule made thereunder shall 
take away, abridge, or prejudicially affect any right which any person 
may have independently of this section to make any search in the 
office ; and every such search may be made as if this section or any such 
rule had not been enacted or made. 

(8.) Where a solicitor obtains an office copy certificate of result of 
search under this section, he shall not be answerable in respect of any 
loss that may arise from error in the certificate. 

(9.) "Where the solicitor is acting for trustees, executors, agents, or 
other persons in a fiduciary position, those persons also shall not be so 
answerable. 

(10.) Where such persons obtain such an office copy without a 
solicitor, they shall also be protected in like manner. 

(11.) Nothing in this section applies to deeds inroUed under the 
3 & 4 Will. 4, Knes and Recoveries Act, or under any other Act, or under any 
"■ '*• statutory rule. 

(12.) This section does not extend to Ireland. 

(a) See this Schedule, ante, p. 126. 

(J) See E. S. C. 1883, Ord. LXI. r. 23, infra. 

{ib) Seeposl, p. 132. 



CONVETANCINa ACT, 1882. 129 

Notice. 45 & 46 Viot. 

8- — (!•) -A- purchaser shall not he prejudioiaUy afieoted by notice of any instru- "• ^^> ■*■ ^• 

ment, fact, or thing unless — .z — , 

(i.) It is within his o-vra. knowledge, or would have come to his knowledge if such Restriction on 
inquiries and inspections had been made as ought reasonably to have been constructive 
made by him; or s j notice, 

(ii.) In the same transaction with respect to which a question of notice to the 
purchaser arises, it has come to the knowledge of his counsel, as such, or of 
hia soUoitor, or other agent, as such, or would have come to the knowledge 
of his solicitor, or other agent, as such, if such inquiries and inspections had 
been luade as ought reasonably to have been made by the solicitor or other 
agent, 
(p.) This section shall not exempt a purchaser from any liability under, or any 
obligation to perform or observe, any covenant, condition, provision, or restriction 
contained in any iostrument under which his title is derived, mediately or imme- 
diately ; and such liability or obligation may be enforced in the same manner and 
to the same extent as if this section had not been enacted. 

(3.) A purchaser shall not by reason of anything in this section be affected by 
notice in any case where he would not have been so afEected if this section had not 
been enacted. 

(4. ) This section applies to purchases made either before or after the commence- 
ment of this Act ; save that, where an action is pending at the commencement of 
this Act, the rights of the parties shall not be affected by this section. 

Leases. 

[Sect. 4 provides that a contract for a lease shall not form part of the title to the 
ise.] 

Separate Trustees. 

5. — (1.) On an appointment of new trustees, a separate set of trustees Appointment 
may be appointed for any part of the trust property held on trusts "gj-g^J"!^**® 
distinct from those relating to any other part or parts of the trust trustees. 
property ; or, if only one trustee was originally appointed, then one 
separate trustee may be so appointed for the first-mentioned part. 

(2.) This section applies to trusts created either before or after the 
commencement of this Act. 

Powers. 
[Sect. 6 authorizes any person to whom any power, whether with or without an 
interest, is given, to disclaim it by deed, and thereupon the power may be exercised 
by the other donees.] 

Married Women. 

7. — (1.) In section seventy-nine of the Knes and Recoveries Act, and section Acknowledg- 
seventy of the Fines and Recoveries (Ireland) Act, there shall, by virtue of this ment of deeds 
Act, be substituted for the words "two of the perpetual commissioners, or two by married 
special commissioners," the words "one of the perpetual commissioners, or one women, 
special commissioner;" and in section eighty-three of the Fines and Recoveries 
Act, and section seventy-four of the Fines and Recoveries (Ireland) Act, there shall, 
by virtue of this Act, be substituted for the word " persons " the word " person," 
and for the word "commissioners" the words " a commissioner ; " and all other 
provisions of those Acts, and all other enactments having reference in any manner 
to the sections aforesaid, shall be read and have effect accordingly. 

(2.) Where the memorandum of acknowledgment by a married woman of a deed 
purports to be sigrned by a person authorized to take the acknowledgment, the deed 
shall, as regards the execution thereof by the married woman, take effect at the 
time of acknowledgment, and shall be conclusively taken to have been duly 
acknowledged. 

(3.) A deed acknowledged before or after the commencement of this Act by a 
married woman, before a judge of the High Court of Justice in England or Ireland, 
or before a judge of a county court in England, or before a chairman in Ireland, or 
before a perpetual commissioner or a special commissioner, shall not be impeached 
or impeachable by reason only that such judge, chairman, or commissioner was 
interested or eonoemed either as a party, or as solicitor, or clerk to the solicitor for 
one of the parties, or otherwise, in the transaction giving occasion for the acknow- 
ledgment ; and general rules shall be made for preventing any person interested or 

M. If 



130 CONVETANCING ACT, 1882. 

45 & 46 Vict, concerned as aforesaid from taking an acknowledgment ; but no such rule shall 

c. 39, s. 7. make invalid any acknowledgment ; and those rules shall, as regards England, be 

— — — — deemed Rules of Court within section seventeen of the Appellate Jurisdiction Act, 

39 & 40 Vict. 1876^ as altered by section nineteen of the Supreme Court of Judicature Act, 1881, 
"• 59- _ and shaU, as regards Ireland, be deemed Rules of Court within the Supreme Court 
44 & 45 Vict, of Judicature Act (Ireland), 3877, and may be made accordingly, for England and 
"■ ^^. Ireland respectively, at any time after the passing of this Act, to take effect on or 

40 & 41 Vict, after the commencement of this Act (c). 

"• °i- (4.) The enactments described in the schedule to this Act are hereby repealed. 

(5.) The foregoing provisions of this section, including the repeal therein, apply 
only to the execution of deeds by married women after the commencement of this Act. 

(6.) Notwithstanding the repeal or any other thing in this section, the certificate, 
if not lodged before the commencement of this Act, of the taking of an acknow- 
ledgment by a married woman of a deed executed before the commencement of this 
Act, with any afiidavit relating thereto, shall be lodged, examined, and filed in the 
Hke manner and with the lifce effects and consequences as if this section had not 
been enacted. 

(7.) There shall continue to be kept in the proper ofSce of the Supreme Court of 
Judicature an index to all certificates of acknowledgments of deeds by ma.rried 
women lodged therein, before or after the commencement of this Act, containing 
the names of the married women and their husbands, alphabetically arranged, and 
the dates of the certificates and of the deeds to which they respectively relate, and 
other particulars found convenient ; and every such certificate lodged after the com- 
mencement of this Act shall be entered in the index as soon as may be after the 
certificate is filed. 

(8.) An office copy of any such certificate filed before or after the commencement 
of this Act shall be delivered to any person applying for the same ; and every such 
office copy shall be received as evidence of the acknowledgment of the deed to 
which the certificate refers. 

(c) See p. 131, infra. 

Powers of Attorney. 
[Sect. 8 provides in favour of purchasers that powers of attorney, given for 
value and expressed to be irrevocable, shall not be revoked.] 

[Sect. 9 makes powers of attorney expressed to be irrevocable (whether given for 
value or not) absolutely valid in favour of purchasers for a fixed time not exceeding 
one year.] 

Executory Limitations. 
[Sect. 10 contains a restriction on executory limitations contained in instruments 
coming into operation after the Act.] 

Long Terms. 

[Sect. 11 amends sect. 65 of the Conveyancing Act, 1881 ; see ante, p. 123.] 

Mortgages. 

Reconveyance 12. The right of the mortgagor, under section fifteen of the Con- 
on mortgage, . « o o > . i » 

veyancmg Act of 1881, to require a mortgagee, instead of re-conveying, 

to assign the mortgage deht and convey the mortgaged property to a 
third person, shall belong to and he capable of being enforced by each 
incumbrancer, or by the mortgagor, notwithstanding any intermediate 
incumbrance ; but a requisition of an incumbrancer shaU prevail over 
a requisition of the mortgagor, and, as between incumbrancers, a re- 
quisition of a prior incumbrancer shall prevail over a requisition of a 
subsequent incumbrancer {cc). 

{co) This section was passed for the purpose of getting over the decision in Teevan 
V. Smith, 20 Ch. D. 724 ; see Alderam v. Elgey, 26 Ch. D. p. 570, cited in note (e) to 
sect. IS of the Conveyancing Act, 1881, ante, p. 114. 

Saving-. 
Restriction on 13' '^^ repeal by this Act of any enactment shall not affect aay right accrued or 
repeals in this obligation incurred thereunder before the commencement of this Act ; nor shall the 
Act. same affect the validity or invalidity, or any operation, effect, or consequence, of any 



CONVETANCINa ACT, 1882. 



131 



instrument executed or made, or of anything done orsufiered, before the commence- 46 & 46 Vict, 
ment of this Act ; nor shall the same affect any action, proceeding', or thing then o. 39, s. 13. 

pending or uncompleted ; and every such action, proceeding, and thing may be 

earned t)n and completed as if there had been no such repeal in this Act. 



3 & 4 WiU. rV. 0. 74 
ia part. 



4 & 5 Will. rV. c. 92 
in part. 



17 & 18 Vict. c. 75 .. 
41 & 42 "Vict. c. 23 . . 



SCHEDULE. 

KePEAIiS. 

The Pines and Recoveries Act ....in part; namely, — 
Section eighty-four, from and including the words 
" and the same judge," to the end of that section. 
Sections eighty-five to eighty-eight, inclusive. 

The Fines and Recoveries (Ireland) ■) . , , 

^gt _ '' ' I m part ; namely,— 

Section seventy-five, from and including the words 
" and the same judge," to the end of that section. 
Sections seventy- six to seventy-nine, inclusive. 

An Act to remove doubts concerning the due aoknow- 
, ledgments of deeds by married women in certain cases. 

The Acknowledgment of Deeds by Married Women 
(Ireland) Act, 1878. 



Section 7 (4). 



Rtiles ukdke the Act foe the Aboution op Fines and Reooveeies, and Sect. 7 

OP THE CoNTETANdNO AOT, 1882. 

1. No person authorized or appointed under the Act 3 & 4 Will. IV. c. 74 (in 
these rules referred to as the Pines and Recoveries Act) to take the acknowledg- 
ments of deeds by married women shall take any such acknowledgment if he is 
interested "or concerned either as a party or as solicitor or clerk to the solicitor for 
one of the parties or otherwise in the transaction giving occasion for the acknow- 
ledgment. 

2. Before a Commissioner shall receive an acknowledgment, he shall inquire of 
the married woman separately and apart from her husband and from the solicitor 
concerned in the transaction whether she intends to give up her interest in the 
estate to be passed by the deed without having any provision made for her ; and 
where the married woman answers in the affirmative and the Commissioner shall 
have no reason to doubt the truth of her answer, he shall proceed to receive the 
acknowledgment ; but if it shall appear to him that it is intended that provision 
is to be made for the married woman, then the Commissioner shall not take her 
acknowledgment until he is satisfied that such provision has been actually made by 
some deed or writing produced to him ; or it such provision shall not have been 
actually made before, then the Commissioner shall require the terms of the intended 
provision to be shortly reduced into writing, and shall verify the same by his 
signature in the margin, at the foot, or at the back thereof. 

3. The memorandum to be indorsed on or written at the foot or in the margin of 
a deed acknowledged by a married woman shall be in the following form in lieu of 
the form set forth in sect. 84 of the Pines and Recoveries Act : 

" This deed was this day produced before me and acknowledged by 
therein named to be her act and deed [or their several acts and deeds] previous to 
which acknowledgment [or acknowledgments] the said was [or were] 

examined by me separately and apart from her husband [or their respective hus- 
bands] touching her [or their] knowledge of the contents of the said deed and her 
[or their] consent thereto and [each of them] declared the same to be freely and 
voluntarily executed by her." 

4. When an acknowledgment is taken by any person other than a judge, the 
following declaration shall be added to the memorandum of acknowledgment : — 

" And I declare that I am not interested or concerned either as a party or as a 
" solioitor or clerk to the solicitor for one of the parties or otherwise in the trans - 
" action giving occasion for the said acknowledgment." 

5. A memorandum of acknowledgment purporting to be signed according to any 

k2 



132 CONVEYANCING ACT RULES, 1882. . 

of the following forms shall be deemed to be a memorandum purporting to be gigned- 
by a person authorised to take the acknowledgment : — 

(Signed) A.B. 
A judge of the High Court of Justice in England, 
or a judge of the County Court of , 

or a perpetual commissioner for taking acknowledgments of deeds 
by married women, 

or the special commissioner appointed to take the aforesaid acknow- 
ledgment. 
But this rule is not to derogate from the effect of any memorandum purporting 
to be signed by a person authorized to take the acknowledgment, thongh.not signed 
in aooordanoe with any of the above forms. 

6. Nothing in the five preceding rules contained shall make invalid any acknow- 
ledgment which would have been valid if these rules had not been enacted. 

7. Every commission appointing a special commissioner to take an acknowledg- 
ment by a married woman shall be returned to the office of the registrar of certifi- 
cates of acknowledgments of deeds by married women, and shall be there filed. An 
index shall be prepared and kept in the said office, giving the names and addresses 
of the married women named in all such commissions filed in the said office after 
the 31st December, 1882. The same rules shall apply to searches in the index so 
to be prepared as to searches in the other indexes and registers kept in the Central 
Office. 

. 8. The costs to be allowed to solicitors in respect of the matters hereinafter men- 
tioned, when not otherwise regulated by the general orders in force for the time 
being under the Solicitors' Remuneration Act, 1881, or by special agreement, shall 
be as follows : anything in the Rules of the Supreme Court as to costs, dated the 
12th August, 1875, to the contrary notwithstanding : — 

Charges wider the Act 3^4 Will. lY. e. 74 {the Fines and Secoveries Act). 

For the endorsements on deeds required by the Fines and Recoveries £ a. d. 
Act, to be entered on the Court rolls of manors of the memorandum of 
production and memorandum of entry on Court rolls, to be signed by the 
lord steward or deputy steward, each indorsement of memorandum 6s., 

together 10 

For the entries on the Court rolls of deeds and the indorsements thereon, 

at per folio of 72 words 6 

IFor taking the consent of each protector of settlement of lands 13 4 

For taking the surrender by each tenant in tail of lands 13 4 

For entries of such surrenders or the memorandums thereof in liie Court 
rolls, at per folio of 72 words 6 

9. The following Rules and Orders are hereby repealed, except as to certificates 
not lodged before the 1st January, 1883, of acknowledgments by married women 
of deeds executed before the 1st January, 1883, and the affidavits relating 
thereto : — 

The General Rules of the Court of Common Pleas, HUary Term, 1834. 
The General Rules of the Court of Common Pleas, Trinity Term, 1834. 
The General Order of the Court of Common Pleas, dated the 24th November. 
1862. ' 

The General Order of the Court of Common Pleas, dated the 13th January, 1863. 

10. These Rules shall take effect from and after the 31st December, 1882. 

RuiiES TJITDEE SECTION 2 OF THE CoNVETAUCTNG AoT, 1882. 

1. Every requisition for an official search shall state the name and address of 
the person requiring the search to be made. Every requisition and certificate 
shall be filed in the office where the search was made. 

2. Every person requiring an official search to be made pursuant to section 2 of 
the Conveyancing Act, 1882, shaU deHver to the officer a declaration according to 
the Forms I. and II. in the Appendix, purporting to be signed by the person 
requiring the search to be made, or by a solicitor, which declaration may be 
accepted by the officer as sufficient evidence that the search is required for the 
purposes of the said section. The declaration may be made in the requisition or 
in a separate document. ' 

3. Requisitions for searches under section 2 of the Conveyancing Act, 1882 
shall be in the Forms III. to VI. in the Appendix, and the certificates of the 
results of such searches shall be in the Forms VII. to X., with such modifications 
as the circumstances may require. 



CONVEYANCING ACT RULES, 1882. 133 

i. Where a certificate setting forth the result of a search in any name has been 
issued, and it is desired that the search be continued in that name, to a date not 
more than one calendar month subsequent to the date of the certificate, a requisi- 
tion in -writing in the Form XI. in the Appendix may be left -with the- proper 
officer, who shall cause the search to be continued, and the result of the continued 
search shall be endorsed on the original certificate and upon any office copy thereof 
■which may have been issued, if produced to the officer for that purpose. The 
endorsement shall be in the Porm XII. in the Appendix with such modifications as 
circumstances require. 

5. Every person shall upon payment of the prescribed fee he entitled to have a 
copy of the whole or any part of any deed or document enrolled in the Enrolment 
Department of the Central Office. 

Rule under the CoNVETAiroiNa and Lav of Peopeeiy Act, 1881. 

6. An alphabetical index of the names of the grantors of all powers of attorney 
filed under section 48 of the Conveyancing and Law of Property Act, 1881, shall 
be prepared and kqpt by the proper officer, and any person may search the index 
upon payment of the prescribed fee. No person diaU take copies of or extracts 
from any power of attorney or other document filed under that section and pro- 
duced for his inspection. All copies or extracts which may be required shall be 
made by the Office. 

(Signed) SELBORNE, C. 

COLERIDGE, L. C. J. 
G. JESSEL, M. R. 
NATH. LINDLET, L. J. 
H. MANISTT, J. 
EDW. FRY, J. 



APPENDIX. 

FORM I. 

DbciiAbation by Sbpabatb Ihsteotibnt as to Puepobbs of Seaech. 

Supreme Court of Judicature, 

Central Office. 

To the Clerk of Enrolments 

or The Registrar of 

Royal Courts of Justice, 

London. 

In the matter of A.B. and CD. 
I declare that the search (or searches) in the name {or names) of required 

to be made by the requisition for search, dated the is (or are) required for 

the purposes of a sale {or mortgage, or lease, or as the case may be), by A.B. 
to CD. 

Signature, 

address, and 

description. 
Dated 



FORM 11. 

Dboiaeation as to Pueposes dp Sbaboh containbd xs the Hequisition. 
I declare that the above-mentioned search is required for the purposes of a sale 
{or mortgage, or lease, or as the ease may be), by A.B. to CD. 



134 



CONVEYANCING ACT BULES, 1882. 



POKM III. 

Requisition foe Seaeoh in the Eneolment Opmcib, tjndbb the CoNVETAuoiNa 

Act, 1882, s. 2. 
Supreme Court of Judicature, 
Central Office. 

' Requisition for Search. 

To the Clerk of Enrohnenls, 
Royal Courts of Justice, 
London. 

In the matter of A.B. and CD. 
Pursuant to section 2 of the Conveyancing Act, 1882, search for deeds and other 
documents enrolled during the period from 18 to 

18 both inclusive, in the following name (fir names). 



Surname. 



Christian Name or 
Names. 



Usual or last knOTm 
Place of Almde. 



Title, Trade, or Pro- 
fession. 



[Add deeJaration, Form XI.) 

{State if an office copy of the certificate is desired, and whether it is to he sent hj post or 
called for.) 

Signature, address, and \ 
description of person 5 
requiring the search. ) 
Dated 



FORM IV. 
Reouisition foe Seaeoh in the Bills or Sale Depaeiment irarDEE the Contet- 

ANCiNQ Act, 1882, s. 2. 
Supreme Court of Judicature, 
Central Office. 

Requisition for Search. 
To the Registrar of Bills of Sale, 
Royal Courts of Justice, 
London. 

In the matter of A.B. and CD. 
Pursuant to section 2 of the Conveyancing Act, 1882, search for instruments 
registered or re -registered as bills of sale during the period from 
18 to 18 both inclusive in the following name (or names). 



Surname. 


Christian Name or 

Names. 


Usoal or last known 
Place of Abode. 


Title, Trade, or Pro- 
fession. 


( 









[Add declaration. Form II.) 

(Slate if an office copy of the certificate is desired, and whether it is to be sent by post or 
called for.) 



Dated 



Signature, address, and | 
description of person > 
requiring the search. ) 



CONVErANCINa ACT EULES, 1882. 



135 



POEM V. 

RBQUismoir FOE Seaeoh in the Eeoistey of Ceetifioates of Aoknowledqhents 
OF Deeds by TVfAEErpm "Women tjnbbb the Conthtahoinq Aot, 1882, s. 2. 

Supreme Court of Judicature, 
Central Office. 

Eequisition for Search. 

To the Eegistrar of Certificatea of Acknowledgments of Deeds by Married "Women. 
Royal Courts of Justice, 
London. 

In the matter of A.B. and CD. 
Pursuant to section 2 of the Conveyancing Aot, 1882, search for Certificates of 
Acknowledgments of Deeds by Married "Women during the period from 
18 to 18 both inolusive, according to the particulars men- 

tioned in the schedule hereto. 



The SOHEDTTIiE. 



Surname. 



Christian Name 

or Names 

of "Wife and 

Husband. 



Date of Certificate 

if the Search 
relates to a parti- 
cular Certificate. 



Date of Deed, if 

the Search 

relates to a nar- 

ticnlor DeeS. 



County, Parish, or 
Place in which 
the Property 

is situate, or other 
description of 
the Koperty. 



{Add declaration, Form II.) 

{State if an office copy of the certificate ia desired, and whether it is to be sent by post or 
ailed for.) 

Signature, address, and \ 
description of person > 
requiring the search. ) 
Dated 



FORM VI. 

Requisition foe Seaeoh in the Reqistet of Judoments tjndee the Convetanoino 

Act, 1882, s. 2. 

Supreme Court of Judicature, 
Central Office. 

Requisition for Search. 

To the Registrar of Judgments, 
Royal Courts of Justice, 
London. 

In the matter of A.B. and CD. 

Pursuant to section 2 of the Conveyancing Aot, 1882, search for judgments, 
revivals, decrees, orders, rules, and lis pendens, and for judgments at the suit of 
the Oown, statutes, recognizances. Crown bonds, inqiusitions, and acceptances of 
office for the period from 18 to 18 , both 

inclusive and for executions for the period from the 29th July, 1864, {or as the 
ease may require) to the 18 , both inclusive, and for annuities for 



136 



CONVETANCING ACT RULES, 1882. 



the period from the 26th April, 1855 (or as the case may require) to the 
18 , both inoluaive in the following name [or names). 



Sumajus. 



Christiaii Name or 
Names. 



Usual or last kno'vm 
Place of Abode. 



Title, Trade, or Pro- 
fession. 



(Add declaration. Form II.) 

(State if an office copy of the certificate is desired, and whether it is to be sent by post or, 
called for.) 



Bated 



Signature, address, and \ 
description of person > 
requiring the search. ; 



FORM VII, 

CBETrFIOATB OF SeAEOH BY EneOLMBNT DbPABTMENT UNDBB THB CONVETANaiKa 

Act, 1882, s. 2. 

Supreme Court of Judicature, 
Central Office, 

Enrolment Department. 

Certificate of Search pursuant to Section 2 of the Conveyancing Act, 1882. 

In the matter of A.B. and CD. 

This is to certify that a search has been diligently made in the Enrolment OfBce 

for deeds and other documents in the name (or names) of for the period from 

to , both inoluaiTe, and that no deed or other document has been 

enrolled in the said office in that name (or in any one or more of those names) 

during the period aforesaid. 

or and that except the described in the schedule hereto no deed or document 

has been enrolled in that name (or in any one or more of those names) during the 
period aforesaid. 

The Schedule. 
Dated 



FORM VIII. 

CbETIPIOATE of SbAEOH by the RbOISTBAE of BiLLa OF SAIiB TTHDEB THB 
CoMVBTAirOIKO AoT, 1882. 

Supreme Court of Judicature, 
Central Office, 

Bills of Sale Department. 
Certificate of Search pursuant to Section. 2 of the Conveyancing Act, 1882. 
In the matter of A.B. and CD. 
This is to certify that a search has been diligently made in the Register of Bills 
of Sale in the name (or names) of for the period from 18 to 18 

both inclusive, and that no instrument has bsen registered or re-registered as a 
bill of sale in that name (or in any one or more of those names) during that 
period. 



.CONVEYANCIN& ACT RULES, 1882. 

or, and that except the described in the schedule hereto, no instrument has 

been registered or re-registered as a bill of sale in that name {or in any one or 
more of those names) during the period aforesaid. 



The SoHEDTJiiB. 



Dated 



137 



FORM IX. 

CbETIPICATE op SbAEOH by ReQISTBAB op CbETIPIOATES op AcKNO'WIiEDGJIENTS OP 

Deeds by lyfATtBrRn 'Woiien thibee the Conveyanoinq Act, 1882, s. 2. 

Supreme Court of Judicature, 
Central OfSce. 

Registry of Certificates of Acknowledgments of Deeds by Married Women. 

Certificate of Search pursuant to Section 2 of the Conveyancing Act, 1882. 

In the matter of A.B. and CD. 

This is to certify that a search has been diligently made in. the OfEce of the 

Registrar of Certificates of Acknowledgments of Deeds by Married Women in the 

name {or names) of for the period from to 18 , both inclusive, 

for a certificate dated the ■ or for certificates of acknowledgment of a 

deed dated the 

or for certificates of acknowledgments of deeds relating to {fill in the description 
of the property from the Requisition) and that no such certificate has been filed 

In that name {or in any one or more of those names) during the period aforesaid, 

or and that except the certificate (or certificates) described in the Schedule hereto, 
no such certificate has been filed in that name {or in any one or more of those names) 
during the period aforesaid. 



Snmame. 



Obiistiaix Karnes 

of Wife 

and Husband. 



Date of 
Certificate. 



Date of Deed. 



County, Farisli, or Place 

ia which Property 

situated, or 

otber description of the 

Properly. 



Dated 



day of 



188 



FORM X. 

Cbetipioatb op Seaeoh by Reoisteae op Jutgments unbeb CoNVEYAuonia Act, 

1882, s. 2. 

Supreme Court of Judicature, 
Central Office. 

The Registry of Judgments. 

Certificate of Search pursuant to Section 2 of the Conveyancing Act, 1882. 

In the matter of A.B. and CD. 

This is to certify that a search has been diligently made in the Office of the 
Registrar of Judgments for judgments, revivals, decrees, orders, rules, lis pendens, 



138 coNVEYANcrisra act rules, 1882. 

judgmentfl at the suit of the Crown, statutes, recognizanoes, Crown bonds, inqui- 
sitions, and acceptances of office, for the period from 18 to 18 , 
both inclusive, and for executions for the period from 18 to 18 , 
both inclusive, and for annuities for the period from to 18 , both 
inclusive, in the name [or names) of and that no judgment, revival, decree, 
order, rule, lis pendens, judgment at the suit of the Crown, statute, recognizance. 
Crown bond, inquisition, acceptance of office, execution, or annuity has been 
registered or re-registered in that name [or in any one or more of those names) 
during the respective periods covered by the aforesaid searches, 

or and that except the mentioned in the Schedule hereto, no judgment, revival, 

decree, order, rule, lis pendens, judgment at the suit of the Crown, statute, recogni- 
zance. Crown bond, inquisition, acceptance of office, execution, or annuity has been 
registered or re-registered in that name (or in any one or more of those names) 
during the respective periods covered by the aforesaid search. 

The Scheduli}. 
Dated the day of 188 . 



FOEM XI. 
EEauisiTiON roE CoNTunjATiON OP Seaboh tjotjee the CoNTETANOnsra Act, 1882. 

Supreme Court of Judicature, 
Central Office. 

Hequisition for continuation of Search. 

To the Clerk of Enrolments 
or The Registrar of 

Royal Courts of Justice, 

London, W-C. 

In the matter of A. B. and C. D. 

Pursuant to section 2 of the Conveyancing Act, 1882, continue the search for 

[ ], made pursuant to the requisition dated the day of 18 , in 

the name [oT names) of , from the day of to the day of 
18 , both inclusive. 

Signature, address, and \ 
description of person > 
requiring the search. ) 

Dated 



FORM XII. 

CeETIFICATE OE EESUI.T OE CONTHnTED SeABOH tTNIIEE THE CoiTVEYAHOnia AoT, 1882, 
B. 2, TO BE ENBOESED ON OsiailfAI, CeETIFIOATE. 

This is to certify that the search {or searches) mentioned in the within written 
certificate has {or have) been diligently continued to the day of , 18 , 

and that up to and including that date [except the mentioned in the schedule 

hereto {these words to be omitted where nothing isfotmd) ], no deed or other document 
has been enrolled, or no instrument has been registered, or re -registered, as a bill 
of sale, or no certificate has been filed, or no judgment, revival, decree, order, rule, 
lis pendens, judgment at the suit of the Crown, statute, recognizance, Crown 
bond, inquisition, acceptance of office, execution or annuity, has been registered or 
re-registered in the within-mentioned name {or in any one or more of the within- 
mentioned names). 

Dated 



SETTLED LAND ACT, 1882. 139 



SETTLED LAND ACT, 1882. 45 & 46 Vict. 

0. 38. 
45 & 46 VICT. Cap. 38. 



An Aci for facilitating Saks, Leases, and other dispositions of Settled 
Land, and for promoting the execution of Improvements thereon. 

[10th August, 1882.] 
Be it enacted, &c. as follows : 

I. — Peeliminaey. 

1. — (1.) This Act may be cited as the Settled Land Act, 1882. Short title; 

(2.) This Act, except where it is otherwise expressed, shall commence commenoe- 
and take efEect from and immediately after the thirty-first day of ™^''*; 
December, one thousand eight hundred and eighty-two, which time is 
in this Act referred to as the commencement of this Act. 

(3.) This Act does nof extend to Scotland. extent. 

n. — ^DEETNITIOlfS. 

2. — (1.) Any deed, will, agreement for a settlement, or other agree- Definition of 
ment, covenant to surrender, copy of court roU, Act of Parliament, or tenant^for' 
other instrument, or any number of instruments, whether made or life, &o. 
passed before or after, or partly before and partly after, the commence- 
ment of this Act, under or by virtue of which instrument or instruments 
any land, or any estate or interest in land, stands for the time being 
limited to or in trust for any persons by way of succession, creates or 
is for purposes of this Act a settlement, and is in this Act referred to 
as a settlement, or as the settlement, as the case requires (o). 

(2.) An estate or interest in remainder or reversion not disposed of 
by a settlement, and reverting to the settlor or descending to the 
testator's heir, is for purposes of this Act an estate or interest 
coming to the settlor or heir under or by virtue of the settlement, and 
comprised in the subject of the settlement. 

(3.) Land, and any estate or interest therein, which is the subject 
of a settlement, is for purposes of this Act settled land, and is, in 
relation to the settlement, referred to in this Act as the settled land. 

(4.) The determination of the question whether land is settled land, 
for purposes of this Act, or not, is governed by the state of facts, and 
the limitations of the settlement, at the time of the settlement taking 
effect. 

(5.) The person who is for the time being, under a settlement, 
beneficially entitled to possession of settled land, for his life, is for 
purposes of this Act the tenant for Hfe of that land, and the tenant for 
life under that settlement {aa). 

(6.) If, in any case, there are two or more persons so entitled as 
tenants in common, or as joint tenants, or for other concurrent estates 
or interests, they together constitute the tenant for hfe for purposes of 
this Act. 



140 SETTLED LAND ACT, 1882. 

45 & 46 Vict. (7.) A person being tenant for life within the foregoing definitions 
"• ' ^" • shall he deemed to be such notwithstanding that, under the settlement 
or otherwise, the settled land, or his estate or interest therein, is 
incumbered or charged in any manner or to any extent. 

(8.) The persons, if any, who are for the time being, under a settle- 
ment, trustees with power of sale of settled land, or with power of 
consent to or approval of the exercise of such a power of sale, or if 
under a settlement there are no such trustees, then the persons, if any, 
for the time being, who are by the settlement declared to be trustees 
thereof for purposes of this Act, are for purposes of this Act trustees 
of the settlement (J). 

(9.) Capital money arising under this Act, and receivable for the 
trusts and purposes of the settlement, is in this Act referred to as 
capital money arising under this Act. 
(10.) In this Act— 

(i.) Land includes incorporeal hereditaments, also an undivided share 
in land ; income includes rents and profits ; and possession includes 
receipt of income : 

(ii.) Eent includes yearly or other rent, and toU, duty, royalty, or 
other reservation, by the acre, or the ton, or otherwise ; and, in rela- 
tion to rent, payment includes delivery ; and fine includes premium or 
fore-gift, and any payment, consideration, or benefit in the nature of 
a fine, premium, or fore-gift : 

(iii.) Building purposes include the erecting and the improving of, 
and the adding to, and the repairing of buildings; and a building 
lease is a lease for any building purposes or purposes connected there- 
with : 

(iv.) Mines and minerals mean mines and minerals whether already 
opened or in work or not, and include all minerals and substances in, 
on, or under the land, obtainable by underground or by surface 
working ; and mining purposes include the sinking and searching for, 
winning, working, getting, making merchantable, smelting or other- 
wise converting or working for the purposes of any manufacture, car- 
rying away, and disposing of mines and minerals, in or under the 
settled land, or any other land, and the erection of buildings, and the 
execution of engineering and other works, suitable for those purposes ; 
and a mining lease is a lease for any mining purposes or purposes 
connected therewith, and includes a grant or licence for any mining 
purposes : 

(v.) Manor includes lordship, and reputed manor or lordship : 
(vi.) Steward includes deputy steward, or other proper oflGlcer of a 
manor : 

(vii.) WiU includes codicil, and other testamentary instrument, and 
a writing in the nature of a wiU : 

(viii.) Securities include stocks, funds, and shares : 
(ix.) Her Majesty's High Court of Justice is referred to as the 
Court : 



SETTLED LAND ACT, 1882. 



141 



(x.) The Land Commissioners for England as constituted by this Act 45 & 46 Viot. 
axe referred to as tlie Land Commissioners : °- ^^' ^- ^- 

(xi.) Person includes corporation. 

(a) Wliere a share under a settlement has been settled, the original settlement " Settle- 
nevertheless remains the ' ' settlement ' ' under the Act, and a summons for the appoint- meut. ' ' 
ment of new trustees need not be entitled in the matter of the derivative settlement 
nor be served on the trustees of it {Me Enowles, 27 Ch. D. 707, -where Pearson, J. 
deoUned to appoint two members of the same family trustees). 

{aa) See Be Jones, 24 Ch. D. 583 ; affd. 26 Ch. D. 736. 

(i) Where property had been devised to trustees upon trust, subject to an an- 
nuity (which had ceased) and a mortgage, to pay the rents to a person for his life, 
or to permit him to receive the same, and after his death to sell the property and 
stand possessed of the proceeds for the benefit of his children, and the tenant for 
life was of advanced age, and had only one child, who had sold her reversionary 
interest in the property, it was held that the property was settled land within the 
meaning of the Act, and that the tenant for life had a power of sale over it ; but 
that there were not, under the settlement, any trustees who, as required by the 
Act, had power to sell, or consent to a sale, and to whom notice had to be given, 
and accordingly the tenant for life was, at the instance of the purchaser of the 
reversion, restrained from selling the property until judgment or further order, or 
until trustees for the purposas of the Act were appointed, and due notice given to 
them of an intention to sell : and the Court, under the circumstances of the case, 
directed that notice should be given to the plaintifl of any application to appoint 
such trustees (Wheelwright v. Walker, 23 Ch. D. 752 ; 31 W. E. 363). See also as 
to the construction of this sub-section, Re Garnett Orme, 25 Ch. D. 595. 



JUU. — Sale ; Eicfranchisement ; Exchange ; Partition. 
General Powers and Regulations. 

3. A tenant for Hf e— p^^^^^g ^„ 

(i.) May sell the settled land, or any part thereof, or any easement, tenant for life 
right, or privilege of any kind, over or in relation to the ' 

same (c) ; and 

(ii.) "Where the settlement comprises a manor, — may sell the 
seignory of any freehold land within the manor, or the free- 
hold and inheritance of any copyhold or customary land, 
parcel of the manor, with or without any exception or re- 
servation of all or any mines or minerals, or of any rights or 
powers relative to mining purposes, so as in every such case 
to effect an enfranchisement ; and 

(iii.) May make an exchange of the settled land, or any part there- 
of, for other land, including an exchange in consideration of 
money paid for equality of exchange ; and 

(iv.) Where the settlement comprises an undivided share in land, 
or, under the settlement, the settled land has come to be 
held in undivided shares, — may concur in making partition 
of the entirety, including a partition in consideration of 
money paid for equality of partition. 

(c) As to the very extensive nature of the power of sale conferred on tenants for 
life by the Act, see Re Chaytor, 25 Ch. D. 651, where there was a previous private 
Act authorizing the trustees to sell subject to a certain restriction, and it was held 
that the tenant for life could sell free from the restriction ; Thomas v. Williams, 24 
Ch. D. 558. See, however, sect. 53, infra. 

[Sect. 4 lays down certain rules to be observed in the exercise of the powers con- 
ferred by sect. 3. See sect. 53, infrn.'\ 



of district. 



142 SETTLED LAND ACT, 1882. 

45 & 46 Vict. Special Powers. 

"• 38» <>■ °- [Sect. 5 provides for the transfer of incumbrances on land sold, exchanged, or 

partitioned.] 

rV. — Leases. 

General Powers and Regulations. 
Power for g. A tenant for life may lease the settled land, or any part thereof, 

tri^se^for'^^ or any easement, right, or privilege of any kind, over or in relation 
ordinary or to the same, for any purpose whatever, whether involving waste or 

Ttifaing^r"^- ^°*' *°^ ^^'^ *®™^ '^°* exceeding- 
poses, (i.) In case of a building lease, ninety-nine years : 

(ii.) In case of a mining lease, sixty years : 

(iii.) In ease of any other lease, twenty-one years. 

[Sect. 7 lays down certain rules to be observed in the granting' of leases generally; 
they are to be by deed, at the best rent, &o.] 

Building and Mining Leases. 
[Sect. 8 lays down regulations to be observed respecting building leases.] 
[Sect. 9 lays down regulations to be observed in granting mining leases.] 

Variation of lO- — (!•) "Where it is shown to the Court with respect to the district 
binlding or in which any settled land is situate, either — 

acTO^^g^to (i-) '^^^^ i* is *^® custom for land therein to be leased or granted 
circumstances for building or mining purposes for a longer term or on 

other conditions than the term or conditions specified in that 
behalf in this Act, or in perpetuity ; or 
(ii.) That it is difficult to make leases or grants for building or 
mining purposes of land therein, except for a longer term 
or on other conditions than the term and conditions specified 
in that behalf in this Act, or except in perpetuity ; 
the Court may, if it thinks fit, authorize generally the tenant for life 
to make from time to time leases or grants of or affecting the settled 
land in that district, or parts thereof, for any term or in perpetuity, 
at fee-farm or other rents, secured by condition of re-entry, or other- 
wise, as in the order of the Court expressed, or may, if it thinks fit, 
authorize the tenant for life to make any such lease or grant in any 
particular case. 

(2.) Thereupon the tenant for life, and subject to any direction in 
the order of the Court to the contrary, each of his successors in title 
being a tenant for life, or having the powers of a tenant for life under 
this Act, may make in any case, or in the particular case, a lease 
or grant of or affecting the settled land, or part thereof, in conformity 
vfdth the order (d). 

[ft) As to the procedure on an application to the Court, see generally the Settled 
Land Act Kules, 1882, post, p. 157, and as to orders under this section see ibid. r. 9, 

[By sect. 11, part of the rent under a mining lease (in the absence of a contrary 
intention in the settlement) is to be set aside as capital money. See Ee Duke of 
Newcastle, 24 Ch. D. 129.] 

Special Powers. 
[Sect. 12 confers leasing powers for special objects.] 



SETTLED LAND ACT, 1882. I43 

Surrenders. 45 & 46 viot. 

[Sect. 13 authorises the tenant for life to accept surrenders and grant new 0. 38, s. 13. 
leases. J ■ 

Copyholds. 

[Sect. 14 empowers the tenant for life to grant licences to copyholders.] 

V. — Saij;s, Leases, amj other Dispositions. 
Mansion and Parh. 
15. Notwithstanding anything in this Act, the principal mansion Restriction as 
house on any settled land, and the demesnes thereof, and other lands *° mansion 
usually occupied therewith, shall not be sold or leased by the tenant &^^' ^^^ ' 
for life, without the consent of the trustees of the settlement, or an 
order of the Court [dd). 

{dd) Where the tenant for life, who was in iU-health and resided permanently 
elsewhere, was about to sell the whole estate, which was in proximity to a large 
town, so that the bulk of it could not be sold advantageously without the mansion 
house and grounds, it was h^d a proper case for selling the house [Se Srown's Will, 
27 C!h. D. 179). As to service, see S. L. A. Rules, r. 4, infra. 

Streets and Open Spaces. 

[Sect. 16 authorises the tenant for life on a sale or grant for building purposes or 
a building lease to lay out any part of the settled estate for streets, open spaces, &c., 
for the benefit of the residents on the settled land.] 

Surface and Minerals apart. 

[Sect. 17 authorises separate dealing with the surface and the minerals, with or 
without a grant or reservatiou of wayleaves. See Re Duke of Newcastle, 24 
Ch. D. 129.] 

Mortgage. 

[Sect. 18 authorises tte raising of money for equality of exchange, &e., by way 
of mortgage ; the money to be capital money arising under the Act.] 

Undivided Share. 

[Sect. 19 empowers the tenant for life of an undivided share to concur in the 
exercise of any power.] 

Conveyance. 

[Sect. 20 relates to the completion of any sale, lease, exchange, &c., by 
conveyance, &c.] 

VI. — Ihtestment oe other Application oe Capital Trust Money. 
21. Capital money arising under this Act, subject to payment of Capital money 
claims properly payable thereout, and to application thereof for any ^egtment 
special authorized object for which the same was raised, shall, when &o. by trustees 
receiyed, be invested or otherwise applied wholly in one, or partly °^ ° • 
in one and partly in another or others, of the following modes 
(namely) : 

(i.) In investment on Government securities, or on other securities 
on which the trustees of the settlement are by the settlement 
or by law authorized to invest trust money of the settlement, 
or on the security of the bonds, mortgages, or debentures, 
or in the purchase of the debenture stock, of any railway 
company in Great Britain or Ireland incorporated by special 
Act of Parliament, and having for ten years next before the 



144 



SETTLED LAND ACT, 1882. 



45 & 46 Vict, 
o. 38, B. 21. 



Investment 
on debenture 
stock. 



Ilegulations 

respecting 

investment, 



date of investment paid a dividend on its ordinary stock or 
shares, witli power to vary the investment into or for any 
other such securities (e) : 

(ii.) In discharge, purchase, or redemption of incumhrances aflecting 
the inheritance of the settled land, or other the whole estate 
the subject of the settlement, or of land-tax, rentcharge in 
lieu of tithe. Crown rent, chief rent, or quit rent, charged 
on or payable out of the settled land (/) : 

(iii.) In payment for any improvement authorized by this Act : 

(iv.) In payment for equality of exchange or partition of settled 
land : 

(v.) In purchase of the ffeignory of any part of the settled land, 
being freehold land, or in purchase of the fee simple of 
any part of the settled land, being copyhold or customary 
land: 

(vi.) In purchase of the reversion or freehold in fee of any part of 
the settled land, being leasehold land held for years, or life, 
or years determinable on life : 

(vii.) In purchase of land in fee simple, or of copyhold or cus- 
tomary land, or of leasehold land held for sixty years or 
more unexpired at the time of purchase, subject or not 
to any exception or reservation of or in respect of mines or 
minerals therein, or of or in respect of rights or powers 
relative to the working of mines or minerals therein, or in 
other land : 
(viii.) In purchase, either in fee simple, or for a term of sixty years 
or more, of mines and minerals convenient to be held or 
worked with the settled land, or of any easement, right, or 
privilege convenient to be held with the settled land for 
mining or other purposes : 

(ix.) In payment to any person becoming absolutely entitled or 
empowered to give an absolute discharge : 

(x.) In payment of costs, charges, and expenses of or incidental to 
the exercise of any of the powers, or the execution of any of 
the provisions, of this Act : 

(xi.) In any other mode in which money produced by the exercise of 
a power of sale in the settlement is applicable thereunder. 

(«) Money bequeathed to trustees to be laid out in the purchase of land to be 
settled in strict settlement may be invested in debenture stock (JJe Mackenzie, 23 
Ch. D. 750). The Court will not dispense with evidence that the company has paid 
the dividend on its ordinary stock {Se Syron, 31 W. E. 817). See S. L. A. Rules, 
r. 12, infra. 

(/) Sub-section 2 must be read thus : "In discharge of incumbrances afiecting 
the inheritance of the settled land which is sold, or any other land which is the 
subject of the settlement." [Re Chaytor, 25 Ch. D. 661). The word " incum- 
brances" in sect. 21 does not include terminable charges, such as those created 
under the Improvement of Land Act, 1864, and sinular statutes {Me KnateMntll, 
27 Ch. D. 349). 

22. — (1.) Capital money arising under this Act shall, in order to its 
being invested or applied as aforesaid, be paid either to the trustees 



SETTLED LAND ACT, 1882. 14o 

of the settlement or into Court, at tlie option of the tenant for life, 45 &; 45 viot. 
and shall be invested or applied hy the trustees, or under the direction °- 38, s. 22. 
of the Court, as the ease may he, accordingly. devolution, 

(2.) The investment or other apphcation by the trustees shall be and income of 
made according to the direction of the tenant for life, and in default ' 

thereof, according to the discretion of the trustees, but in the last- 
mentioned case subject to any consent required or direction given by 
the settlement with respect to the investment or other application by 
the trustees of trust money of the settlepaent ; and any investment shall 
be in the names or under the control of the trustees. 

(3.) The investment or other application under the direction of the 
Court shall be made on the application of the tenant for life, or of the 
trustees. 

(4.) Any investment or other application shall not during the life 
of the tenant for life be altered without his consent. 

(5.) Capital money arising under this Act whUe remaining uninvested 
or unapplied, and securities on which an investment of any such capital 
money is made, shall, for all purposes of disposition, transmission, and 
devolution, be considered as land, and the same shall be held for and 
go to the same persons successively, in the same manner and for and 
on the same estates, interests, and trusts, as the land wherefrom the 
money arises would, if not disposed of, have been held and have gone 
under the settlement. 

(6.) The income of those securities shall be paid or appHed as the 
income of that land, if not disposed of, would have been payable or 
applicable under the settlement. 

(7.) Those securities may be converted into money, which shaU. be 
capital money arising under this Act. 

23. Capital money arising under this Act from settled land in Investment 
England shall not be applied in the purchase of land out of England, England, 
unless the settlement expressly authorizes the same. 

[Sect. 24 directs how the land acquired by purchase, or in exchange, or on 
partition, ia to be made subject to the settlement.] 

VII. — ^Impeotements. 
Improvements with Capital Trust Monet/. 
25. Improvements authorized by this Act are the making or exeou- Description of 
tion on, or in connection with, and for the benefit of settled land, of ^f^oW by 
any of the following works, or of any works for any of the following Act. 
purposes, and any operation incident to or necessary or proper in the 
execution of any of those works, or necessary or proper for carrying 
into effect any of those purposes, or for securing the fuU benefit of any 
of those works or purposes (namely) : 

(i.) Drainage, including the straightening, widening, or deepening 

of drains, streams, and watercourses : 
(ii.) Irrigation ; warping : 
M. ^ 



146 



SETTLED LAND ACT, 1882. 



45 & 46 Vict, 
u. 38, 8. 25. 



Approval ty 
Laud Com- 
missioners of 
scheme far 
improTement 
and payment 
theieon. 



^(iii.) Drains, pipeB, and machinery for supply and distribution of 
sewage as manure : 

(iv.) Embanking or weiring from a river or lake, or from the sea, 
or a tidal water : 

(v.) Groynes ; sea walls ; defences against water : 

(vi.) Inclosing ; straightening of fences ; re-division of fields : 

(vii.) Eeolamation ; dry warping : 

(viii.) Parm roads; private roads; roads or streets in villages or 
towns : 

(ix.) Clearing ; trenching ; planting : 

(x.) Cottages for labourers, farm-servants, and artisans, employed 
on the settled land or not : 

(xi.) Farmhouses, offices, and outbuildings, and other buildings for 
farm purposes : 

(xii.) Saw-mills, scutch-mills, and other mills, water-wheels, 
engine-houses, and kUns, which will increase the value of 
the settled land for agricultural purposes or as woodland or 
otherwise : 

(xiii.) Eeservoirs, tanks, conduits, watercourses, pipes, weUs, ponds, 
shafts, dams, weirs, sluices, and other works and machinery 
for supply and distribution of water for agricultural, manu- 
facttiring, or other purposes, or for domestic or other 
consumption : 

(xiv.) Tramways ; railways ; canals ; docks : 

(xv.) Jetties, piers, and landing places on rivers, lakes, the sea, or 
tidal waters, for facilitating transport of persons and of 
agricultural stock and produce, and of manure and other 
things required for agricultural purposes, and of minerals, 
and of things required for mining purposes : 

(xvi.) Markets and market-places : 

(xvii.) Streets, roads, paths, squares, gardens, or other open spaces 
for the use, gratuitously or on payment, of the public or of 
individuals, or for dedication to the public, the same being 
necessary or proper in connexion with the conversion of land 
into bmlding land : 

(xviii.) Sewers, drains, watercourses, pipe-making, fencing, paving, 
brick-making, tile-making, and other works necessary or 
proper in connexion with any of the objects aforesaid : 

(xix.) Trial pits for mines, and other preliminary works necessary 
or proper in connexion with development of mines : 

(xx.) Reconstruction, enlargement, or improvement of any of those 
works. 

26. — (1.) Whore the tenant for Hfe is desirous that capital money 
arising under this Act shall be applied in or towards payment for an 
improvement authorized by this Act, he may submit for approval to 
the trustees of the settlement, or to the Court, as the case may require, 
a scheme for the execution of the improvement, showing the proposed 
expenditure thereon. 



SETTLED LAND ACT, 1882. 147 

(2.) "Where the capital money to he expended is in the hands of 45 & 46 viot. 
trustees, then, after a scheme is approved hy them, the trustees may >'• 38, o. 26. 
^Pply that money in or to-wards payment for the whole or part of any 
work or operation comprised in the improvement, on — 

(i.) A certificate of the Land Commissioners certifying that the 
■work or operation, or some specified part thereof, has been 
properly executed, and what amount is properly payable hy 
the trustees in respect thereof, which certificate shall be con- 
clusive in favour of the trustees as an authority and discharge 
for any payment made by them in pursuance thereof ; or on 
(ii.) A like certificate of a competent engineer or able practical 
surveyor nominated by the trustees and approved by the 
Commissioners, or by the Court, which certificate shall be 
conclusive as aforesaid ; or on 
(iii.) An order of the Court directing or authorizing the trustees to 

so apply a "specified portion of the capital money. 
(3.) Where the capital money to be expended is in Court, then, 
after a scheme is approved by the Court, the Court may, if it thinks 
fit, on a report or certificate of the Commissioners, or of a competent 
engineer or able practical surveyor, approved by the Court, or on such 
other evidence as the Court thinks sufiicient, make such order and give 
such directions as it thinks fit for the application of that money, or 
any part thereof, in or towards payment for the whole or part of any 
work or operation comprised in the improvement {ff). 

(ff) This section is not retrospective ; see Ee KnatchhuU, 27 Ch. D. 349, cited in 
note (/) to sect. 21, ante, p. 144. 

[By sects. 27, 28, and 29, the tenant for life may join or concur with any other 
person in executing any improvement authorized by the Act, or contributing to 
the cost thereof, and is bound to maintain and repair and keep insured every such 
improvement, and is not to be liable for waste in executing or repairing any such 
improvement.] 

[Sect. 30 extends sect. 9 of the Improvement of Land Act, 1864.] 

Viil. — Contracts. 

31. [Sub-sects. 1 and 2 empower the tenant for life to contract for sale, partition. Power for . 
lease, &o., such contracts to bind and enure for the benefit of the settled land.] tenant for life 

to enter into 
(3.) The Court may, on the application of the tenant for life, or of contracts, 
any such successor, or of any person interested in any contract, give 
directions respecting the enforcing, carrying into effect, varying, or 
rescinding thereof. 

[By sub-sect. 4 any preliminary contract under the Act for a lease is not to form 
part of the title to the lease.] 

IX. — MiSCIXLAlfEOrS Peovisions. 

32. Where, under an Act incorporating or applying, wholly or in Application 
part, the Lands Clauses ConsoMation Acts, 1845, 1860, and 1869, or co^ufadir 
under the Settled Estates Act, 1877, or under any other Act, public, LandsClauses 
local, personal, or private, money is at the commencement of this Act ^^5°*^*' 

l2 



148 SETTLED LAND ACT, 1882. 

45 & 46 Vict, in Court, or is afterwards paid into Court, and is liable to he laid oi; 

0. 38, 8. 32 . . ., . 



in ike purchase of land to be made subject to a settlement, then, i 

8 & 9 Vict. addition to any mode of dealing therewith authorized by the Act undc 
23 &'24 Vict, which the money is in Court, that money may be invested or applied a 
0. 106. capital money arising under this Act, on the like terms, if any, resped 

32 &^33 Viot. .^^ ^^^^^ ^^^ ^^j^g^ things, as nearly as circumstances admit, and (nol 
40 & 41 Viot. -withstanding anything in this Act) according to the same procedure 
"■ ^*" as if the modes of investment or application authorized by this Ac 

were authorized by the Act under which the money is in Court (^r). 

(ff) See as to costs, Se Smlury, W. N. (1883) 116 ; 31 W. E. 784. The fun 
has been ordered to be paid to trustees appointed for the purposes of the Act (ii 
Wright, 24 Ch. D. 662 ; Ee Sarrop, 24 Ch. D. 717). 

Money paid into Court under the Lands Clauses Act, in respect of land belongin, 
tp the trustees of a charity without power of sale is money " liable to be laid ob 
in the purchase of laud to be made subject to a settlement," and may be investe 
as capital money arising under this Act (fie Byron, 23 Ch. D. 171). 

Application 33. Where, under a settlement, money is in the hands of trustees 

of nioney in g^j^^ jg liable to be laid out in the purchase of land to be made subiec 
hands of . , ,. . , j. j t at. 

trustees under to the settlement, then, in addition to such powers of dealing there 

powers of yn&i. as the trustees have independently of this Act, they may, at th 
option of the tenant for life, invest or apply the same as capital mone; 
arising under this Act. 

Application of 34. Where capital money arising under this Act is purchase mone; 

money paid -^^JA in respect of a lease for years, or Hf e, or years determinable oi 

reversion. life, or in respect of any other estate or interest in land less than th 
fee simple, or in respect of a reversion dependent on any such lease 
estate, or interest, the trustees' of the settlement or the Court, as th 
case may be, and in the case of the Court on the application of an; 
party interested in that money, may, notwithstanding anything in thi 
Act, require and cause the same to be laid out, invested, accumulated 
and paid in such manner as, in the judgment of the trustees or of th 
Court, as the case may be, will give to the parties interested, in tha 
money the like benefit therefrom as they might lawfully have ha( 
from the lease, estate, interest, or reversion in respect whereof thi 
money was paid, or as near thereto as may be (A). 

{h) Cf. sect. 74 of the Lands Clauses Act and notes thereto, ante, p. 33, auc 
sect. 37 of the Settled Estates Act, 1877. As to service on an application unde 
this section, see S. L. A. Kules, 1882, r. 4, infra. 

Cutting and 35, — (1.) Where a tenant for life is impeachable for waste in re 

and part of ' spect of timber (AA), and there is on the settled land timber ripe and fi 

proceeds to be for cutting, the tenant for life, on obtaining the consent of the trustee 

of the settlement or an order of the Court, may cut and sell tha 

timber, or any part thereof. 

(2.) Three fourth parts of the net proceeds of the sale shall be se 
aside as and be capital money arising under this Act, and the othe 
fourth part shall go as rents and profits. 

[hh] As to what trees are timber, see Sonywood v. Sonywood, 18 Eq. 306. 

Proceedings 36. The Court may, if it thinks fit, approve of any action, defence 

for protection > n ^ i 



SETTLED LAND ACT, 1882. - I49 

petition to Parliament, parliamentary opposition, or other proceeding 45 & 46 Viet, 
taien or proposed to be taken for protection of settled land, or of any "• ^^' ^- ^^- 
action or proceeding taken or proposed to be taken for recovery of land or recovery of 
being or aUeged to be subject to a settlement, and may direct that or'd^med'^ 
any costs, charges, or expenses incurred or to be incurred in relation as settled. 
thereto, or any part thereof,, be paid out of property subject to the 
settlement (i ). 

(j) This section takes the place of sect. 17 of the Settled Estates Act, 1877, which 
is repealed by sect. 64 of this Act, infra. See Me De La Warr, 16 Ch. D. 587 ; He 
Twyford Abbey, 30 W. E. 268. 

37. — (I.) "Where personal chattels are settled on trust so as to devolve Heirlooms, 
with land until a tenant in tail by purchase is born or attains the age 
of twenty-one years, or so as otherwise to vest in some person becoming 
entitled to an estate of freehold of inheritance in the land, a tenant for 
life of the land may sell the chattels or any of them. 

(2.) The money arisijig by the sale shall be capital money arising 
under this Act, and shall be paid, invested, or applied and otherwise 
dealt with in like manner in all respects as by this Act directed 
with respect to other capital money arising under this Act, or may be 
invested in the purchase of other chattels, of the same or any other 
nature, which, when purchased, shall be settled and held on the same 
trusts, and shall devolve in the same manner as the chattels sold. 

(3.) A sale or purchase of chattels under this section shall not be 
made without an order of the Court {j). 

(J) See -Be Brownie Will, 27 Ch. D. 179, where an order was made for sale with 
liberty for the tenant for lUe to bid. 

X. — Teustees. 

38, — (1.) If at any time there are no trustees of a settlement within Appointment 
the definition in this Act {K), or where in any other case it is expedient, °f trustees by 
for purposes of this Act, that new trustees of a settlement be appointed, 
the Court may, if it thinks fit, on the application of the tenant for life 
or of any other person having, under the settlement, an estate or interest 
in the settled land, in possession, remainder, or otherwise, or, in the 
case of an infant, of his testamentary or other guardian, or next friend, 
appoint fit persons to be trustees under the settlement for purposes of 
this Act {V). 

Uc) Seeife Garneit Orme, 25 Ch. D. 595. 

\l) See Wheelwright v. Walker, 23 Ch. D. 752 ; 31 W. E. 363, cited in note {b) to 
8. 2, ante, p. 141 ; Re Taylor, 31 W. E. 696 ; W. N. (1883) 95, cited in note to sect. 62, 
infra. The solicitor of the tenant for life ( Wheelwright v. Walker ; Ee Kemp, 24 Ch. 
D. 485), or the tenant for life himself {Ee Earrop, 24 Ch. D. 717), should not be 
appointed trustee. As to payment of the fund to trustees appointed for the purposes 
of the Act, see Me Wright, 24 Ch. D. 662 ; Me Sarrop, 24 Ch. D. 717. As to the 
title of the summons, see Me Parry, W. N. (1884) 43. The application to appoint 
new trustees is made by summons ; see Settled Land Act Eules, r. 2, infra ; and as 
to service, see ibid., r. 4. 

(2.) The persons so appointed, and the survivors and survivor of 
them, while continuing to be trustees or trustee, and, until the appoint- 
ment of new trustees, the personal representatives or representative 



150 

45 & 46 Viot. 



Number of 
trustees to 
act. 



Reference of 
differences - 
to Court. 



SETTLED LAND ACT, 1882. 

for the time being of the last surviving or continuing trustee, shall 
for purposes of this Act become and be the trustees or trustee of the 
settlement. 

39. — (1.) Notwithstanding anything in this Act, capital money 
arising under this Act shall not be paid to fewer than two persons as 
trustees of a settlement, unless the settlement authorizes the receipt of 
capital trust money of the settlement by one trustee. 

(2.) Subject thereto, the provisions of this Act referring to the 
trustees of a settlement apply to the surviving or continuing trustees 
or trustee of the settlement for the time being. 

[By sect. 40 trustees' receipts are to be good discharges, and sects. 41, 42 and 43 
contain usual provisions for the protection and reimbursement of trustees.] 

44. If at any time a difference arises between a tenant for life and 
the trustees o:^ the settlement, respecting the exercise of any of the 
powers of this Act, or respecting any matter relating thereto, the Court 
may, on the application of either party, give such directions respecting 
the matter in difference, and respecting the costs of the application, as 
the Court thinks fit (w). 

(m) See for directions as to costs of sales, £e BecTc, 24 Ch. D. 608. As to service, 
see Settled Land Act Rules, r. 4, infra. 

[By sect. 45 a tenant for life intending to make a sale, exchange, partition, 
lease, mortgage or charge, is required to give notice to the trustees. It was held 
that a merely general notice of intention to sell, &o. was not sufficient (JJ« j^ay, 25 
Ch. D. 464). See now sect. 5 of the Settled Land Act, 1884, i»/ra.] 



Regulations 
respecting 
payments into 
Court, appli- 
cations, &c. 



39 & 40 Viot. 
c. 59. 

44 & 45 Vict. 
0. 68. 



XI. — CoTJBT ; Land Commissioiters ; Proceduke. 

46. — (1.) All matters within the jurisdiction of the Court under this 
Act shall, subject to the Acts regulating the Court, be assigned to the 
Chancery Division of the Court. 

(2.) Payment of money into Court effectually exonerates therefrom 
the person making the payment. 

(3.) Every application to the Court shall be by petition, or by sum- 
mons at Chambers. 

(4.) On an application by the trustees of a settlement notice shall be 
served in the first instance on the tenant for life. 

(5.) On any application notice shall be served on such persons, if 
any, as the Court thinks fit. 

(6.) The Court shall have full power and discretion to make such 
order as it thinks fit respecting the costs, charges, or expenses of all or 
any of the parties to any application, and may, if it thinks fit, order 
that all or any of those costs, charges, or expenses be paid out of pro- 
perty subject to the settlement. 

(7.) General Eules for purposes of this Act shall be deemed Rules of 
Court within section seventeen of. the Appellate Jurisdiction Act, 1876, 
as altered by section nineteen of the Supreme Court of Judicature Act, 
1881, and may be made accordingly (n). 

(8.) The powers of the Court may, as regards land in the County 



SETTLED LAND ACT, 1882. 151 

Palatine of Lancaster, be exercised also by the Court of Chancery of 45 & 46 Viot. 
the County Palatine ; and Eules for regulating proceedings in that "• ^^' °- ^^' 
Court shall be from time to time made by the Chancellor of the Duchy 
of Lancaster, with the advice and consent of a Judge of the High ' 
Court acting in the Chancery Division, and of the Yice-ChanceUor of 
the County Palatine. 

(9.) General Eules, and Eules for the Court of Chancery of the 
County Palatine, may be made at any time after the passing of this 
Act, to take effect on or after the commencement of this Act (n). 

(10.) The powers of the Court may, as regards land not exceeding 
in capital value five hundred pounds, or in annual rateable value thirty 
pounds, and, as regards capital money arising xinder this Act, and 
securities in which the same is invested, not exceeding in amount or 
value five hundred pounds, and as regards personal chattels settled 
or to be settled, as in this Act mentioned, not exceediag in value five 
hundred pounds, be exorcised by any County Court within the district 
whereof is situate any part of the land which is to be dealt with in the 
Court, or from which the capital money to be dealt with m the Court 
arises under this Act, or in connexion with which the personal chattels 
to be dealt with in the Court are settled. 

(») For the rules made under this provision, see the Settled Land Act Rules, 1882, 
infra. 

47. Where the Court directs that any costs, charges, or expenses be Payment of 
paid out of property subject to a settlement, the same shaU, subject gettled'pro- 
and according to the directions of the Court, be raised and paid out of perty. 
capital money arising under this Act, or other money liable to be laid 
out in the purchase of land to be made subject to the settlement, or 
out of investments representing such money, or out of income of any 
such money or investments, or out of any accumulations of income of 
land, money, or investments, or by means of a sale of part of the 
settled land iu respect whereof the costs, charges, or expenses are 
incurred, or of other settled land comprised in the same settlement 
and subject to the same limitations, or by means of a mortgage of the 
settled land or any part thereof, to be made by such person as the 
Court directs, and either by conveyance of the fee simple or other 
estate or interest the subject of the settlement, or by creation of a 
term, or otherwise, or by means of a charge on the settled land or any- 
part thereof, or partly in one of those modes and partly in another or 
others, or in any such other mode as the Court thinks fit. 

[Sects. 48 and 49 provide that the Enclosure Commissioners, the Copyhold 
Commissioners and the Tithe Commissioners shall constitute one body, to be styled 
the Land Commissioners for England ; and define their powers, &c.] 

SBy sect. 50 the powers under the Act of a tenant for life are not assignable, 
remain exerciseable by him notwithstanding any assignment, by law or other- 
wise, of his interest under the settlement ; and a contract not to exercise any of his 
powers under the Act is void.] 

[By sects. 51 and 52 any prohibition or limitation against the exercise of the 
powers is void, and no exercise of any power under the Act is to create a forfeiture. 



152 SETTLED LAND ACT, 1882. 

46 & 46 Vict. A tenant for life, in exercising any of the powers, is to be deemed a trustee for all 
0.38,88.51-55. the persons entitled under the settlement (s. 53); a general protection is given to 

purchasers, &o. dealing in good faith (s. 54) ; and the powers and authorities 

conferred by the Act are to be exerciseable from time to time (s. 55).] 

Saving for 56. — (1.) Nothing in this Act shall take away, abridge, or prejur 

other powers, ^^pjg^jjy affect any power for the time being subsisting under a settle- 
ment, or by statute or otherwise, exerciseable by a tenant for life, or 
by trustees with his consent, or on his request, or by his direction, or 
otherwise ; and the powers given by this Act are cumulative. 

(2.) But, in case of conflict between the provisions of a settlement 
and the provisions of this Act, relative to any matter in respect whereof 
the tenant for life exercises or contracts or intends to exercise any 
power under this Act, the provisions of this Act shall prevail ; and, 
accordingly, notwithstanding anything in the settlement, the consent 
of the tenant for life shall, by virtue of this Act, be necessary to the 
exercise-by the trustees of the settlement or other person of any power 
conferred by the settlement exerciseable for any purpose provided for 
in this Act. 

(3.) If a question arises, or a doubt is entertained, respecting any 
matter within this section, the Court may, on the applicatidn of 
the trustees of the settlement, or of the tenant for life, or of any 
other person interested, give its decision, opinion, advice, or direction 
thereon (o). 

(o) See as to this section, Se Sm-rsSaden, W. N. (1883) 188 ; 32 W. E. 194, 
where an order had been made imder the Settied Estates Act, 1877, enabling the 
trustees to sell, but it had not been acted on ; Se Duke of Newcastle, 24 Oh. D. 129. 
See also sect. 6 of the Settled Land Act, 1884, infra. 

A tenant for life with leasing powers under a will became bankrupt. The trustee 
in bankruptcy presented a petition asking that the powers of leasing might be 
exercised by the trustees of the will ; it was suggested, but denied, that the tenant 
for life declined to do anything. Kay, J., held tiiat it would be improper to grant 
general leasiug powers to the trustees, and that the proper coiwse would be for the 
parties interested to come to the Court with a scheme, and show that it was for the 
benefit of the estate that some particular lease should be granted ; and then, if the 
tenant for life contumaciously refused to exercise his powers, the Court would know 
how to deal with the case ; and his lordship, with the consent of all parties, ordered 
the petition to stand over, with liberty to amend {Re Manael, W. N. (1884) 209). 

[By sect. 67, additional powers may be conferred by the settlement, and will be 
exerciseable as if conferred by the Act.] 

XIII. — ^Limited Ownebs Gkneraixt. 
Enumeration 58. — (1.) Each person as follows shall, when the estate or interest of 
UnSted"^ each of them is in possession {p) have the powers of a tenant for life 

owners, to under this Act, as if each of them were a tenant for life as defined in 
rfl^'a^Ifor tMs Act (namely): 

life. (i.) A tenant in tail, including a tenant in tail who is by Act of Par- 

liament restrained from barring or defeating his estate tail, 
and although the reversion is in the Crown, and so that the 
exercise by him of his powers under this Act shall bind the 
Crown, but not including such a tenant in tail where the land 
in respect whereof he is so restrained was purchased with 



SETTLED LAND ACT, 1882. 153 

money provided by Parliament in consideration of public 45 & 46 Viot. 
services : "■ ^®' ^- ^^• 



(ii.) A tenant in fee simple, -with an executory limitation, gift, or 
disposition over, on failure of his issue, or in any other 
event (y) : 
(iii.) A person entitled to a base fee, although, the reversion is in 
the Crown, and so that the exercise by him of his powers 
under this Act shall bind the Crown : 
(iv.) A tenant for years determinable on life, not holding merely 

under a lease at a rent (r) : 
(v.) A tenant for the life of another, not holding merely under a 

lease at a rent : 
(vi.) A tenant for his own or any other life, or for years deter- 
minable on life, whose estate is liable to cease in any event 
during that life, whether by expiration of the estate, or by 
conditional limitation, or otherwise, or to be defeated by an 
executory limitation, gift, or disposition over, or is subject to 
a trust for accumulation of income for payment of debts or 
other purpose (r) : 
(vii.) A tenant iu tail after possibility of issue extinct : 
(viii.) A tenant by the curtesy : 

(ix.) A person entitled to the income of land under a trust or 

direction for payment thereof to him during his own or any 

other life, whether subject to expenses of management or 

not(«), or untU sale of the land, or until forfeiture of his 

interest therein on bankruptcy or other event. 

(2.) In every such case the provisions of this Act referring to a 

tenant for life, either as conferring powers on him or otherwise, 

and to a settlement, and to settled land, shall extend to each of the 

persons aforesaid, and to the instrument under which his estate or 

interest arises, and to the land therein comprised. 

(3.) In any such case any reference in this Act to death as regards 
a tenant for Ufe shall, where necessary, be deemed to refer to the 
determination by death or otherwise of sucb estate or interest as last 
aforesaid. 

{p) See JJ« Tarry, "W. N. (1884) 43. 

!q) See as to this sub-section, Se Morgan, 24 Ch. D. 114. 
r) See Se Sazle, 26 Ch. D. 428. 

(») A person may be " entitled to the income of land under a trust or direction 
for payment thereof to him during Ms life, subject to expenses of management," 
within this sub-section, although the estates are so heavily encumbered that he has 
never received anything, and is not likely to do so (Se Jones, 24 Ch. D. 683 ; affirmed, 
26 Ch. D. 736). 

XTV. — ^Ikpants ; Mabbibd Women ; Lunatics. 

59, Where a person, who is in his own right seised of or entitled Lifant abso- 
in possession to land, is an infant, then for purposes of this Act the ^o w^t*'*^^t 
land is settled land, and the infant shall be deemed tenant for life for life. 
thereof ((). 

(t) See Se Welti, 31 W. B. 764 ; "W. N. (1883) 111. 



154 



SETTLED LAND ACT, 1882. 



45 & 46 Viot. 
c. 38, B. 60. 

Tenant for 
life, infant. 



Married 
woman, how 
to be affected. 



Tenant for 
life, lunatic. 



60. "Where a tenant for life, or a person having the powers of a 
tenant for life under this Act, is an infant, or an infant would, if he 
were of full age, be a tenant for life, or have the powers of a tenant 
for life under this Act, the powers of a tenant for life under this Act 
may be exercised on his behalf by the trustees of the settlement, and 
if there are none, then by such person and in such manner as the 
Court, on the application of a testamentary or otiher guardian or next 
friend of the infant,- either generally or in a particular instance, 
orders (u). 

{«) See Se Duke of Newcastle, 24 Ch. D. 129 ; 31 W. E. 782 ; Se James, W. N. 
(1884) 172. In appointing trustees to sell an infant's estate the Court may autho- 
rize the sale to be made out of Court {Se Frice, 27 Ch. D. 552). 

61. — (1.) The foregoing provisions of this Act do not apply in the 
case of a married woman. 

(2.) "Where a married woman who, if she had not been a married 
woman, would have been a tenant for life or would have had the 
powers of a tenant for life under the foregoing provisions of this Act, 
is entitled for her separate use, or is entitled under any statute, passed 
or to be passed, for her separate property, or as a feme sole, then she, 
without her husband, shall have the powers of "a tenant for life under 
this Act. 

(3.) "Where she is entitled otherwise than as aforesaid, then she 
and her husband together shall have the powers of a tenant for life 
under this Act. 

(4.) The provisions of this Act referring to a tenant for life and a 
settlement and settled land shall extend to the married woman without 
her husband, or to her and her husband together, as the case may 
require, and to the instrument imder which her estate or interest 
arises, and to the land therein comprised. 

(5.) The married woman may execute, make^ and do all deeds, in- 
struments, and things necessary or proper fop giving effect to the 
provisions of this section. 

^ (6.) A restraint on anticipation in the settlement shall not prevent 
the exercise by her of any power under this Act. 

62. "Where a tenant for life, or a person having the powers of a 
tenant for Ufe under this Act, is a lunatic, so found by inquisition, the 
committee of his estate may, in his name and on his behalf, under an 
order of the Lord Chancellor, or other person intrusted by virtue of 
the Queen's Sign Manual with the care and commitment of the custody 
of the persons and estates of lunatics, exercise the powers of a tenant 
for life under this Act ; and the order may be made on the petition of 
any person interested in the settled land, or of the committee of the 
estate («). 

(») Where there were no trustees of the settlement in existence it was considered 
that new trustees should be appointed before the powers of the Act could be exer- 
cised, and a petition by the committee of the tenant for life, who was a lunatic for 
power to grant a building lease of part of the settled property was directed to stand 
over for the purpose of appointing new trustees, with liberty to amend by stating 
the appointment of trustees,, and that they had been served with notice of the 



SETTLED LAND ACT, 1882, 155 

petition (JRe Taylor, 31 W. R. 596 ; W. N. (1883) 95). The committee of a lunatic 45 & 46 Vict. 

tenant for life cannot give a valid notice under sect. 45 unless lie has obtained o. 38, u. 62. 

authority from the L.JJ. so to do {ReRatj, 25 Oh. D. 464). 



XV. — Settlement by -way of Trusts pob Sale. 

63. — (1.) Any land, or any estate or interest in land, vhicli under Provision for 
or by virtue of any deed, will, or agreement, covenant to surrender, ^oTeU and^ 
copy of court roll, Act of Parliament, or other instrument or any num- re-invest in 
ber of instruments, whetlier made or passed before or after, or partly ^^'^°- 
before and partly after, tbe commencement of this Act, is subject to a 
trust or direction for sale of that land, estate, or interest, and for the 
application or disposal of the money to arise from the sale, or the 
income of that money, or the income of the land until sale, or any part 
of that money or income, for the benefit of any person for his life, or 
any other limited period, or for the benefit of tvro or more persons con- 
currently for any limited period (ic), and whether absolutely, or subject 
to a trust for accumulation of income for payment of debts or other 
purpose, or to any other restriction, shall be deemed to be settled land, 
and the instrument or instruments under which the trust arises shall 
be deemed to be a settlement ; and the person for the time being bene- 
ficially entitled to the income of the land, estate, or interest aforesaid 
until sale, whether absolutely or subject as aforesaid, shall be deemed 
to be tenant for life thereof ; or if two or more persons are so entitled 
concurrently, then those persons shall be deemed to constitute together 
the tenant for life thereof ; and the persons, if any, who are for the 
time being under the settlement trustees for sale of the settled land, or 
having power of consent to, or approval of, or control over the sale, or 
if under the settlement there are no such trustees, then the persons, if 
any, for the time being, who are by the settlement declared to be 
trustees thereof for purposes of this Act are for purposes of this Act 
trustees of the settlement. 

(2.) In every such case the provisions of this Act referring to a 
tenant for life, and to a settlement, and to settled land, shall extend to 
the person or persons aforesaid, and to the instrument or instruments 
under which his or their estate or interest arises, and to the land 
therein comprised, subject and except as in this section provided (that 

is to say) : 

(i.) Any reference in this Act to the predecessors or successors in 
title of the tenant for life, or to the remaindermen, or rever- 
sioners or other persons interested in the settled land, shall be 
deemed to refer to the persons interested in succession or other- 
wise in the money to arise from sale of the land, or the income of 
that money, or the income of the land, until sale (as the case may 

require), 
(ii.) Capital money arising under this Act from the settled land 
shall not be appHed in the purchase of land unless such applica- 
tion is authorized by the settlement in the case of capital money 
arising thereunder from sales or other dispositions of the settled 



156 

45 & 46 Viot. 
u. 38, B. 63. 



SETTLEB LAND ACT, 1882. 

land, but may, in addition to any otter mode of application 
authorized by this Act, be applied in any mode in wbicb capital 
money arising nnder the settlement from any such sale or other 
disposition is applicable thereunder, subject to any consent 
required or direction given by the settlement with respect to the 
application of trust money of the settlement. 

(iii.) Capital money arising under this Act from the settled land 
and the securities in which the same is invested, shall not for 
any purpose of disposition, transmission or devolution, be con- 
sidered as land unless the same would, if arising under the settle- 
ment from a sale or disposition of the settled land, have been so 
considered, and the same shall be held in trust for and shall go 
to the same persons successively in the same manner, and for and 
on the same estates, interests, and trusts as the same would have 
gone and been held if arising under the settlement from a sale or 
disposition of the settled land, and the income of such capital 
money and securities shall be paid or applied accordingly. 

(iv.) Land of whatever tenure acquired under this Act by purchase, 
or in exchange, or on partition, shaU. be conveyed to and vested 
in the trustees of the settlement, on the trusts, and subject to the 
powers and provisions which, under the settlement or by reason 
of the exercise of any power of appointment or charging therein 
contained, are subsisting with respect to the settled land, or would 
be so subsisting if the same had not been sold, or as near thereto as 
circumstances permit, but so as not to increase or multiply charges 
or powers of charging (a;). 

(w) See Allaway v. Oakley, W. N. (1884)67. 

(x) See the SetUed Land Act, 1884, ss. 6 & 7, and notes thereto, infra, p. 166. 



XVI. — BeptiatiS. 

Bepeal of 64.— (1.) The enactments described in the schedule to this Act are hereby 

enactments repealed. 

in schedule. (2.) The repeal by this Act of any enactment shall not afiect any right accrued or 

obligation incurred thereunder before the commencement of this Act ; nor shall the 
same affect the validity or invalidity, or any operation, effect, or consequence, of 
any instrument executed or made, or of anythmg done or suffered, or of any order 
made, before the commencement of this Act ; nor shaJl the same affect any action, 
proceeding, or thing then pending or uncompleted ; and every such action, pro- 
ceeding, and thing may be carried on and completed as if there had been no such 
repeal in this Act. 



XVn. — Ieelakd. 
[Sect. 65 relates only to Ireland.] 



SETTLED LAND ACT, 1882. 



157 



23 & 24 Viot. 0. 145. 
in paxt. 



27 & 28 Viot. 0. 114. 
in part. 



40 & 41 Vict. 0. 18. . . 
in part. 



THE SCHEDULE. 
Kepeaxs. 

An Act to give to trustees, mort- \ 
gagees, and others, certain I 
powers now commonly inserted > in part ; namely, — 
in settlements, mortgages, and I 
wills , J 

Parts I. and IV. 

(being so mucli of the Act as is not repealed by the 
Conveyancing and Law of Property Act, 1881). 

The Improvement of Land Act, 1864. .in part; namely, — 
Sections seventeen and eighteen : 
Section twenty-one, from "either by a party" to 
"benefice) or" (inclusive) ; and from "or if the 
land owner" to "minor or minors" (inclusive) ; 
and " or circumstance " (twice) : 
Except as regards Scotland. 

The Settled Estates Act, 1877 in part ; namely, — 

Section seventeen. 



46 & 46 Viot. 

c. 38. 

I 

Section 64. 



EtTLES UNDEK THE SETTLED LaMB AcT, 1882. 
[The Kules as issued have no marginal notes.] 

1. The expression " the Act " used in these rules means the Settled Definitions. 
Land Act, 1882. 

Words defined by the Act when used in these rules have the same 
meanings as in the Act. 

The expression " the tenant for life " includes the tenant for life as 
defined by the Act, and any person having the powers of a tenant for 
life under the Act. 

2. All applications to the Court under the Act may be made by AppUoations 

summons in chambers : and if in any case a petition shall be presented *° ^ 

.* X X summons. 

without the direction of the judge, no further costs shall be allowed 
than would be allowed upon a simunons. 

3. The forms in the appendix to these rules are to be followed as far Forms, 
as possible, with such modification as the circumstances require. All 
summonses, petitions, affidavits, and other proceedings under the Act 

are to be entitled according to Form 1 in the Appendix. 

4. The persons to be served with notice of applications to the Cotirt Persons to be 
shall, in the first instance, be as foUows : — served. 

In the case of applications by the tenant for life under sects. 15 and 

34, the trustees. 
In the ease of applications under sect. 38, the trustees (if any), and 

the tenant for life if not the applicant. 
In the case of applications under sect. 44, the tenant for life, or the 

trustees, as the case may be. 
No other person shall in the first instance be served. Except as 
hereinbefore provided where an application under the Act is made by 



158 



SETTLED LAND ACT RULES, 1882. 



Wliere no 

service 

lequired. 

Judge may 
direct service 
or dispense 
with service. 



Title of tenant 
for life to be 
verified by 
affidavit. 



Sales to be 
carried into 
effect out of 
Court. 

Orders, when 
to direct 
leases, &c. to 
be settled by 
the judge. 



Payment of 
capital money 
into Court. 



Evidence. 



any person otlier than tlie tenant for life, the tenant for life alone 
shall be served in the first instance. 

5. Except in the cases mentioned in the last rule, applications by a 
tenant for life shall not in the first instance, .be served on any 
person. 

6. The judge may require notice of any application under the Act to 
be served upon such persons as he thinks fit, and may give all necessary 
directions as to the persons (if any) to be served, and such directions 
may be added to or varied from time to time as the case may require. 
Where a petition is presented, the petitioner may, after the petition 
has been filed, apply by summons in chambers (Appendix, Form 
XXI 1 1.) for directions with regard to the persons on whom the petition 
ought to be served. If any person not already served is directed to be 
served with notice of an a;pplication, the application shall stand over 
generally, or until such time as the judge directs. The judge may in 
any particular case, upon such terms (if any) as he thinks fit, dispense 
with service upon any person upon whom, under these rules, or under 
any direction of the judge, any application is to be served. 

7. It shall be sufficient upon any application under the Act to verify 
by affidavit the title of the tenant for life and trustees or other persons 
interested in the application unless the judge in any particular case 
requires further evidence. Such affidavit may be in the form or to the 
effect of Form No. VIII. ia the Appendix. 

8. Any sale authorised or directed by the Court' under the Act, shall 
be carried into effect out of Court, unless the judge shall otherwise 
order, and generally in such manner as the judge may direct. 

9. Where the Court authorises generally the tenant for Hfe .to make 
from time to time leases or grants for building or mining piirposes 
under section 10 of the Act, the order shall not direct any particular 
lease or grant to be settled or approved by the judge unless the judge 
shall consider that there is some special reason why such lease or grant 
should be settled or approved by him. Where the Court authorises 
any such lease or grant ia any particular case, or where the Court 
authorises a lease under section 15 of the Act, the order may either 
approve a lease or grant already prepared or may direct that the lease 
or grant shall contain conditions specified in the order or such condi- 
tions as may be approved by the judge at chambers without directing 
the lease or grant to be settled by the judge. 

10. Any person directed by the tenant for life to pay into court 
any capital money arising under the Act may apply by summons at 
chambers for leave to pay the money into court. (Appendix, Forms 
IX., X., XI.) 

11. The summons shall be supported by an affidavit setting forth — 

1. The name and address of the person desiring to make the 

payment. 

2. The place where he is to be served with.notice of any proceeding 

relating to the money. 



SETTLED LAND ACT RULES, 1882. 159 

3. The amount of money to be paid into court and the account to 

the credit of which it is to he placed. 

4. The name and address of the tenant for life under the settlement 

hy whose direction the money is to he paid into court. 

5. The short particulars of the transaction in respect of which the 

money is payable. 

12. The order made upon the summons for payment into court, Order may 
may contain directions for investment of the money on any securities ^^^8*^^!°" 
authorised by section 21, sub-section 1 of the Act, and for payment Testment. 

of the dividends to the tenant for life, either forthwith or upon pro- 
duction of the consent in writing of the applicant ; the signature to 
such consent, to be verified by the affidavit of a solicitor. But i£ the 
transaction in respect of which the money arises, is not completed at 
the date of payment into court, the money shall not, without the con- 
sent of the applicant, be ordered to be invested in any securities other 
than those upon which.cash under the control of the court may be 
invested. 

13. Money paid into court under the Act shall be paid to an account, Title of 
to be entitled in the matter of the settlement, with a short description 

of the mode in which the money arises if it is necessary or desirable 
to identify it, and in the matter of the Act. (Appendix Forms IX., 
X., and XI.). 

14. Any person paying into court any capital money arising under Costs of pay- 
the Act shall be entitled first to deduct the costs of paying the money ™ "*• 
into court. 

15. In aU cases not provided for by the Act or these rules, the exist- Saymg of 
ing practice of the court as to costs and otherwise, so far as the same p^ct^f 
may be applicable, shall apply to proceedings under the Act. 

16. The fees and allowances to solicitors of the court in respect to Solicitors' 
proceedings under the Act shall be those provided by the Rules of the ^llo^^'^oes. 
Supreme Court as to costs for the time being in force, so far as they 

are applicable to such proceedings. 

17. The fees to be taken by the officers of the court in respect to Court fees, 
proceedings under the Act shall be those provided by the Rules of the 
Supreme Court as to court fees for the time being in force, so far as 

they are applicable to such proceedings. 

18. These rules shall come into operation from and after the 31st Dateof eom- 
December, 1882. STulT''* 

19. These rules may be cited as the Settled Land Act Eules, 1882. gj^^^^ j.j(.jg_ 

(Signed) SELBOENE, C. 

COLEEIDGE, L. 0. J. 
G. JESSEL, M. R. 
NATH. LINDLET, L. J. 
H. MANISTY, J. 
E. FEY, J. 



160 SETTLED LAND ACT RULES, 1882. 



APPENDIX. 

EOEM I. 

TrruB OP PEOOEEDiuas. 

In the High Court of Justice, 
Chancery Division, 

Vice- Chancellor Bacon, 

or 
Mr. Justice Chitty, 
[or other Judge before whom the application is to be heardS] 

In the matter of the ' estate [or, of the timber upon the estate], 

situate at in the county of , [or, of the chattels], settled by a 

settlement made by an indenture dated the day of , and made 

between [or, by the WiU of dated or, as the case may be]. 

And in the matter of the Settled Land Act, 1882. 



FOBU II. 
EoBUAIi FJlHI 01' SUMUONS. 

Title as in Eorm I. 

Let all parties concerned attend at my chambers at the Boyal Courts of Justice 
on day, the day of 18 , at o'clock in the forenoon, on 

the hearing of an application — 

(«.) On the part of A.B., the tenant for life [or, tenant in tail, or as the case may 
be, describing the nature of the applicant's estate"] under the aboTe-mentioned' 
settlement. 

Or, (b.) On the part of A.B., the tenant for life (pr, as the case may be) under the 
above-mentioned settlement an infant, by X.Y., his testamentary guardian [or, 
guardian appointed by order dated the , or next friend]. 

Or, (o.) On the part of CD. and E.F., the trustees of the above-mentioned 
settlement for the purposes of the above-mentioned Act. 

Or, {d.) On the part of G.S., the tenant for life in remainder [or, tenant in tail 
in remainder, or as the case may be, describing the applicant's interest] under the above- 
mentioned settlement subject to the life interest of A.B. [or as the case may be]. 

Or, («.) On the part of I.J., the purchaser of the lands [or, the timber upon the 
lands, or chattels, or as the case may be] settled by the above-mentioned settlement. 

Or, (/.) On the part of I. J., the lessee under a mining lease dated the 
18 , granted under the powers of the above-mentioned Act of the mines and 
minerals under the lands settled by the above-mentioned settlement. 

Or, [g.) On the part of I. J., the mortgagee under a mortgage intended to be 
created under sect. 18 of the above-mentioned Act of the lands settled by the 
above-mentioned settlement. 

Or, (h.) On the part of K.Z., interested under the contract herein-after 
mentioned. 

Dated the day of 18 

This summons was taken out by of , solicitor for the applicant. 

To 

(Add the names of the persons {if any) on whom the summons is to be served.) 



POBM III. 
StJMMONS UNBEB SeOT. 10 FOB G-BNEEAl LeASIKO PoWEBB. 

Title and formal parts as in Forms I. and II. a. or b. 

1. That the applicant [or in the case of an infant that the said X.T. during the 
infancy of the said A.S.], and each of his successors in title [or in the ease of an infant, 
each of the successors in title of the said A.B.], being a tenant for life or having 
the powers of a tenant for life uiider the above-mentioned Act, may pursuant to 
sect. 10 of the said Act be authorised from time to time to make building [or 
mining] leases of the lands comprised in the said settlement for the term of 

years [or in perpetuity]- on the conditions specified in the said Act [or on other 
conditions than those specified in sects. 7 to 9 of the said Act]. 

2. That the costs of this application may be directed to be taxed as between 



SETTLED LAND ACT RULES, 1882. 161 

snwf /"'l''"®''*^ and that the same when taxed may be paid out of the property 
may be ivS^ ' settlement, and that for that purpose aU necessary cUreotions 

,-r, ^i"'~'^^^ proposed conditions ought not, except in simple oases, to be set forth 
in tne summons. 



EOEM IV. 

Summons otdeb Sections 10 oe IS foe AuiHOEm to oeant a paetiottlae Lease 

■WHEEK THE TbNANT FOE LiFE HAS ENTEEED INTO A CoNTEAOT. 

Title as in Porm I. J 
Formal parts as in Form II. a. or b. 

1. That the condition^ contract, dated the 18 , and made between the 
applicant [<»• tiie said X.T.] of the one part and of the other part, for a 
I bmldmg or muung] lease to the said of the hereditaments therein mentioned 
isT^^.r™; ^^ ^^°^ ^^ conditions therein stated, may, pursuant to sect. 10 [or 
ISJ ot the above-mentioned Act be approved, and that the said A.B. [or X.T.I mav 
be authorised to execute a lease in pursuance of the said contract. 

2. {Add application for costs as in Form III. 2.) 



FOEM V. 

SuMltONS TTNDEE SECTtONS 10 OE 15 FOE AuTHOEITY TO OEANT A PAETIOtTLAE LeASE 
WHEN NO CONTEAOT Tr*a BEEN ENTEBED INTO. 

Title as in Form I. 
Formal parts as in Form II. u. or b. 

1. That the [building or mining] lease intended to be granted to of the 
lands [or of the mansion house, &c.], settled by the said settlement may, pursuant 
to sect. 10 [or 15] of the above-mentioned Act be approved, and that the applicant 
[or the said X.T.] may be authorised to execute the same. 

2. {Add application for costs as i« Form III. 2.) 



FoEM VI. 

SuMMONa UNDEE Sechonb 15, 35, OE 37 FOE A Sale out op Oouet of the peingipai 

Mansion House, aud Dehesnes, oe of Timbee ob Chattels. 

Title as in Form I. 

Formal parts as in Form II. a. or i. 

1. That the applicant [or in the case of an infant the said X.T.] maybe authorised 
to sell the principal mansion hoxise [or the timber ripe and fit for cutting] on the land 
[or the fomitnre and chattels] settled by the above-mentioned settlement in such 
manner and subject to such particulars, conditions, and provisions as he may 
think fit. 

2. That the coats of this application may be taxed as between solicitor and client, 
and that CD. and E.F., the trustees of the said settlement, may be at liberty to 
pay the costs when taxed out of the proceeds of the said sale [or, in the case of 
timber, out of the three-fourths of the proceeds of the said sale to be set aside as 
capital money arising under the said Act], or if this Form is not applicable as in 
Form III. 2. 



FOEM VII. 

Summons unbee Sections 16, 35, oe 37 foe Sai<e bt the Couet of the peinoxpal 
Mansion House, and Demesnes, oe ob Timbee oe Chattels. 

Title as in Form I. 

Formal parts as in Form II. a. or b. 

1. That the principal mansion house [or the timber ripe and fit for cutting] on 
the land [or the furniture and chattels], settled by the above-mentioned settlement, 
may be sold under the direction of the Court. 

2. (Application for costs as in Form III. 2.) 

M. M 



162 SETTLED LAiTD ACT RULES, 1882. 

FOBM VIIL 

ApprDAvrr ■vekefuno Title. 

Title as in Eorm I. 

I of make oath and say as follows : 

1. By the ahove-mentioued settlement the above-mentioned lands [or certain 
chattels, shortly describing them] stand liinited to uses [or upon trusts] under ■which 
A.B. is [or I am] beneficially entitled in possession as tenant for life [or tenant in 
tail or tenant in fee simple, with an executory gift over or as the ease may J«]. 

2. {If it is the fact.) The said A.B. is an infant of the age of years or 
thereabouts. 

3. CD. of and E.E. of . are trustees under the said settlement, with 
a power of sale of the said lands [or with power of consent to or approval of the 
exercise of a power of sale of the said lands contained in the said settlement, or are 
the persons by the said settlement declared to be trustees thereof for purposes of 
the above-mentioned Act]. 



FoEJiIX. 

Stjmmons undee Section 22 by Pueohasee eoe PiyiiENT into Cottet op Pueohase- 
MoNET OP Settled Land, Tqebee, oe Chattels. 

Title as in Eorm I. 

Formal parts as in Form II. e. 

1. That the applicant may be at liberty to pay into Court, to the credit of "In 
" the matter of the settlement, dated the and made between [or will, &o.] 
" proceeds of sale of the A. estate [or as the case may S«], and in the matter of 
"the Settled Land Act, 1882," the sum. of £ on account of the purchase-money 
of the said A. estate [or as the case may J«], settled by the said settlement [or wiU, 
&c.]. 

2. That such directions may be given for the investment of the said sums when 
paid into Court, and the accumulation or payment of the dividends of the securities 
representing the same, as the Court may think proper. 



FOEM X. 

Summons undee Section 22 eoe Payment into Couet by Lessee undeb a Minino 
Lease (see Section 11), 

Titie as in Form I. 

Formal parts as in Form II. /. 

1. That the applicant may be at Uberty to pay into Court to the credit of "In 
" the matter of the settlement dated the and made between [or the 
" wiU, &c/] mineral rents under lease dated the and in the matter of the 
" Settled Land Act, 1882," the sum of £ being three-fourths [or one-fourth] 
of the rents payable by him under the said lease for the half-year ending the 

less £ the costs of payment into Court. 

2. That the applicant may be at liberty on or before the day of and 
the day of ia every year during the term created by the said lease to 
pay into Court to the credit aforesaid, so much of the rents payable by birn under 
the said lease as is by section 11 of the above-mentioned Act directed to be set aside 
as capital money arising imder the said Act after deducting therefrom the costs of 
payment in, the amount paid in to be verified by afSdavit. 

3. That the said sum of £ and all other sums to be paid into Court to the 
credit aforesaid, may be invested in the purchase of [name the investment'], to the 
like credit, and that the dividends on the said when purchased, may be paid 
to A.B., the tenant for life under the above-mentioned settlement, during his life 
or until further order. 



SETTLED LAlfD ACT RULES, 1882. 163 

FokmXI. 

StnotONa TOiDEE Section 22 foe Patuknt into Cotjet by Moetoaqee (see Seotion 18). 

Title as in Eorm I. 
Eormal parts as in Form II. g. 

1. That the applicant maybe at liberty to pay into Court to the credit of " Money 
" adranoed on mortgage of lands settled by the settlement dated the and made 
"between [or the will, &c.], and in the matter of the Settled Land Act, 1882," 
the sum of £ being the amount agreed to be advanced by bim on mortgage 
of the lands comprised in the above-mentioned settlement, less the costs of pay- 
ment in. 

2. {Add directions fen- investment as in Form VIII. 2.) 



FOEM XII. 

Stranioira ttniiee Section 26 (1). 

Title as in Form I. 

Formal parts as in Form II. a. or h. 

1. That the scheme left' at my chambers this day for the execution of improve- 
ments on the lands settled by the above-mentioned settlement may be approved. 

2. {Add application for costs as in Form III. 2.) 



FoEM XIII. 
SxramoNS tjndee Section 26, Sub-section (2) (ii), foe Appointment oe an Enqineee 

OE SimVETOE. 

Title as in Form I. 
Formal parts as in Form II. ». or b. 

1. That M.N., of engiueeer [or surveyor], may be approved as engineer 
[or surveyor], for the purposes of section 26, sub-section (2) (ii) of the above- 
mentioned Act. 

2. (Add application for coats as in Form III. 2.) 



FOEM XIV. 
Nomination op an Engineee oe Suevetoe by the TEusTEEa. 
Title as in Form I. 
We CD. of and E.F. of the trustees of the above-mentioned settle- 

ment for the purposes of the above-mentioned Act, hereby nominate of 

engineer [or surveyor], for the purposes of section 26, sub-section (2) (ii) of the 
said Act. 

(Signed) CD. 



E.F. 



FoEM XV. 

Summons uniieb Section 26, Sub-section (2) (iii). 

Title as in Form I. 

Formal parts as in Form II. «;. or 6. 

1. That CD. and E.F. the trustees of the above-mentioned settlement, for 
the purposes of the above-mentioned Act may be directed to apply the sum of 
£ out of the capital money arising under the said Act in their hands subject 
to the said settlement in payment for Idescribe the worTi or operation^ being [part o/] 
an improvement executed upon the lands subject to the said settlement pursuant to 
a scheme approved by the said CD. and E.F. under the said Act. 

2. {Add application for coats as in Form III. 2.) 



U 2 



1Q4, SETTLED LAND ACT RtTLES, 1882. 

EOEM XVI. 

Stjiqions tjnbee Section 26, Stje-sboiion 3. 

Title as ia Eorm I. 

Ecirmal parts as in Eorm II. a. or J. 

. 1. That the sum of & may be ordered to be raised out of the in Court 

to the credit of and that the same when raised may be paid to upon his 

undertaking to apply the same in payment for [descriie the works or operation] being 

part of an improyement executed upon the land settled by the above-mentioned 

settlement pursuant to the scheme approved by Order dated the 

2. {Add application for costs as in Form III. 2.) 



EoE» XVII. 

Summons undee Section 31. 

Title as in Eorm I. 

Eormal parts as in Form II. «. or h 

1. That the applicant may be at liberty to enforce [or carry into effect or vary or 
resoiud as the case may be"] the contract entered into between the applicant of the one 
part, and of the other part. 

2. Or that such directions maybe given relating to the said contract as the judge 
may think fit, 

3. {Add application for costs as in Form III. 2.) 



FOEM XVIII. 

Sttmmons tjndbb Section 34 foe Application os Monett paid foe a Lease ob 

Eeveesion. 

Title as in Eorm I. 

Formal parts as in Form II. a, h, or d, 

1. That the sum of £ being the proceeds of sale of a lease for years \or life 
or a reversion or other interest, describing «<] settled by the above-mentioned settle- 
ment, may, pursuant to section 34 of the above-mentioned Act, be directed to be 
applied for the benefit of the parties interested under the said settlement in such 
manner as the court may thiii fit. 

2. {Add application for costs as in Form III. 2.) 



FOEM XIX. 

Summons undeb Section 38 eoe the Appointment of New Teusiees, 

Title as in Form I. 

Formal patts as in Form II. u, b, c, or d. 

1. That G-.H. and I.J. may be appointed trustees under the above-mentioned 
settlement for the purposes of the above-mentioned Act. 

2. {Add application for costs as in Form III. 2.) 



FoBM XX. 

Summons undeb Section 44. 

Title as in Form I. 

Formal parts as in Form II. a, b, or c. 

1. That it may be declared that {set out the declaration required), 

2. {Add application for costs as in Form III. 2, or as the circumstances reqmri.) 



SETTLED LAND AOT EULES, 1882. 165 

FOEM XXI. 

Summons tjndee Section 56~roE Adticb and Dibection. 

Title as in Form I. 

Formal parts as in Form II. a. to 7i. 

For the opinion, advice, and direction of tte judge on the following questions : — 

1. Whether 

2. Whether 

3. Whether 

{fir if the qtiestions involve complicated facts) 
for the opinion, advice and direction of the judge on the facts and questions sub- 
mitted by the statement left in my chambers this day. 
{Add application for costs as in Form III. 2.) 



FOBM XXII. 

•SuMitONS tiHiiBE Section 60 foe Appmntmbnt op Pebsons to exbeoise Powees on 

BEHAip OF Infant. 

, Title as in Form I. 

Formal parts as in Form II. b. 

1. That the powers conferred upon a tenant for life by sections 6 to 13, both in- 
clusive, and sections 16 to 20, both inclusive, of tie above-mentioned Act [or suck 
other powers as it is desired to exercise) may be exercised by the said on behalf of 
the said during his minority. 

2. {Add application for costs as in Form III. 2.) 



FoEM XXIII. 

StJMMONS FOB DiEECTIONS A3 TO SeETICE OF A PETITION. 

Title as in Form I. 

Formal parts as in Form II. 

That directions may be given as to the persons to be served with the petition 
presented in the above matter on the day of 18 . 



SETTLED LAND ACT, 1884. 47 & 48 viot. 

0. 18. 



47 & 48 VICT. Cap. 18. 

An Act to amend the Settled Land Act, 1882. 

[3rd July, 1884.] 
Be it exacted, &c., as follows : 

1. This Act may be cited as the Settled Land Act, 1884. Short title. 

2. The expression "the Act of 1882 " used in this Act means the Interpreta- 
Settled Land Act, 1882. ^'°°- 

3. The Act of 1882 and this Act are to be read and construed Construction 
together as one Act, and expressions used in this Act are to have the 

same meanings as those attached by the Act of 1882 to similar expres- 
sions used therein. 

[By sect. 4, a fine on a lease is to be capital money.] 

[By sect. 5, the notice required by sect. 45 of the Settled Land Act, 1882, may, as 
to a sale, exchange, partition, or lease, be general.] 



166 SETTLED LAND ACT, 1884. 

47 & 48 Viot. 6. — (1.) In the case of a settlement within the meaning of section 

' sixty -three of the Act of 1882, any consent not required hy the terms 

As to consents of the settlement is, not by force of anything contaiaed in that Act 

life. to be deemed necessary to enable the trustees of the settlement, or 

any other person, to execute any of the trusts or powers created by the 

settlement. 

(2.) In the case of every other settlement, not within the meaning 
of section sixty-three of the Act of 1882, where two or more persons 
together constitute the tenant for life for the purposes of that Act, 
then, notwithstanding anything contained in sub-section (2) of section 
fifty-six of that Act, requiring the consent of aU those persons, the 
consent of one only of those persons is by force of that section to be 
deemed necessary to the exercise by the trustees of the settlement, or 
by any other person, of any power conferred by the settlement exer- 
ciseable f oT any purpose provided for in that Act. 

(3.) This section applies to dealings before, as well as after, the 
passing of this Act (a). 

(a) See note" to sect. 7. 

Powers given 7. With respect to the powers conferred by section sixty-three of 
exercised only the Act of 1882, the foUowiag provisions are to have effect : — 
•with leave of (i.) Those powers are not to be exercised without the leave of the 
the Court. r< ^ 

Court. 

(ii.) ■ The Court may by order, in any case ia which it thinks fit, 
give leave to exercise aU or any of those powers, and the order 
is to name the person or persons to whom leave is given. 

(iii.) The Court may from time to time rescind, or vary, any 
order made under this section, or may make any new or further 
order. 

(iv,) So long as an order under this section is in force, neither the 
trustees of the settlement, nor any person other than a person 
having the leave, shall execute any trust or power created by the 
settlement, for any purpose for which leave is by the order given, 
to exercise a power conferred T)y the Act of 1882. 

(v.) An order under this section may be registered and re-registered, 
as a lis pendens, against the trustees of the settlement named in 
the order, describing them on the register as " Trustees for the 
purposes of the Settled Land Act, 1882." 

(vi.) Any person dealing with the trustees from time to time, or 
with any other person acting under the trusts or powers of the 
settlement, is not to be affected by an order under this section, 
unless and until the order is duly registered, and when necessary 
re-registered as a lis pendens. 

(vii.) An application to the Court under this section may be made 
by the tenant for Ufe, or by the persons who together constitute 
the tenant for life, within the meaning of section sixty-three of 
the Act of 1882. 



SETTLED LAND ACT, 1884. 167 

(viii.) An application to rescind or vary an order, or to make any 47 & 48 Vict, 
new or further order under tHs section, may he made also by tlie °" ^^' ^' ^' 
trustees of the settlement, or ty any person beneficially interested 
under the settlement. 

(ix.) The person or persons to wliom leave is given by an order 
under this section, shall be deemed the proper person or persons 
to. exercise the powers conferred by section sixty-three of the 
Act of 1882, and shall have, and may exercise those powers 
accordingly. 

(x.) This section is not to affect any dealing which has taken place 
before the passing of this Act, under any trust or power to which 
this section applies (i). 

(J) This and the preceding section were passed in consequence of the dif&oulties 
■which arose iaSeHarle and Webster, 24 Ch. D. 144, and Taylor y. Poncia, 26 Ch. D. 
646, where the question wq^ raised whether trustees, selling under the common 
trust for sale, could make a good title without the concurrence of the tenants for life 
of the purchase-money. 

8. For the purposes of the Act of "1882 the estate of a tenant by Curtesy to be 
the curtesy is to be deemed an estate arising under a settlfement made frisTunder 
by his wife. settlement. 



EAILWAY COMPANIES ACT, 1867. ^^t.^nJ!"^' 



30 & 31 VICT. Cap. 127. 

An Act to amend the Law relating to Railway Companies. 

[20th August, 1867.] 
Be it enacted, &c. as follows : — 

Preliminary. 
I. This Act may be cited as The Eailway Companies Act, 1867. Short title. 

n. Except as in this Act expressly otherwise provided, this Act shall Extent of 
not extend to Scotland. 

rn. In tHs Act— Interpreta- 

^^ .. ., it. i • J. tion of terms. 

The term " company " means a railway company ; tnat is to say, 

a company constituted by Act of Parliament, or by certificate, 
under Act of Parliament, for the purpose of constructing, main- 
taining, or working a railway (either alone or in conjunction 
with any other purpose) : 

The term "action" includes suit or other proceeding: 

The term " judgment " includes decree, order, or rule : 

The term " share " includes stock : 

The term " person " includes corporation : ,, ^^ ^^^ 

The term "Court of Chancery" or "Court" means the Court of Judicature 
Chancery* in England or Ireland, as the case requires : ^^^'^ j873, 



168 



RAILWAY COMPANIES ACT, 1867. 



30 & 31 Yi6t. 
c. 127, B. 3. 



The ^emi "Gazette" means, with, respect, to England, the 
"London Gazette," and with respect to Ireland, the "Dublin 
Gazette." 



Interim 
restrictions 
on executions 
against pro- 
perty of rail- 
way open for 
traiSc. 



Extent of 
protection 
from seizure. 



Open for 
public traffic. 

Contract after 
the Act. 

Form of 
order. 



Protection of Rolling Stock and Plant. 

rV. The engines, tenders, carriages, trucks, machinery, tools, fit- 
tings, materials, and efiEects, constituting the rolling stock and plant 
used or provided by a company for the purposes of the traffic on their 
railway, or of their stations or workshops, shall not, after their railway 
or any part thereof is open for public tra£B.c, be liable to be taken in 
execution at law or in equity at any time after the passing of this Act 
[and* before the first day of September, one thousand eight hundred 
and sixty-eight] (o), where the judgment on which execution issues is 
recovered in an action on a contract entered into after the passing, of 
this Act, or in an action not on a contract commenced after the passing 
of this Act, but the person who has recovered any such judgment may 
obtain the appointment of a receiver,, and, if necessary, of a manager, 
of the undertaking of the company, 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 aU 
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 direc- 
tion of the Court in payment of the debts of the company and other- 
wise according to the rights and priorities of the persons for the time 
being interested therein ; and on payment of the amount due to every 
such judgment creditor as aforesaid the Court may, if it think fit, 
discharge such receiver or such receiver and manager (5). 

(a) This time was extended to 1st September, 1870, by 31 & 32 Vict. o. 79 ; and 
the Act is now made perpetual by 38 & 39 Vict. o. 31, which repealed the words in 
brackets. 

[b) The ^.protection nnder the section from seizure of the rolling stock and plant 
of a railway which has been opened for public traffic continues, although the 
railway is afterwards closed for traffic {Midland Waggon Co. v. T]ie Fotteries, Shrews- 
bury, and North Wales Zy. Co., 6 Q. B. D. 36), and applies to the railway plant of 
every company constituted by statute to construct or work a railway, though that 
may be a subordinate part of its undertaking [Great, Northern Sy. Co. v. Tahourdin, 
13 Q. B. D. 320). Where a, railway company, being in want of money, and 
being advised that it had no power to borrow, sold part of its rolling stock to a 
waggon company, at the same time making a contract with the waggon company 
for the hire of the same rolling stock at a rent which would repay the purchase- 
money wfEh interest in five years, and then for its repurchase at a nominal price, 
the payment of the rent being also guaranteed by three of the directors of the 
railway company, it was held, that the transaction was not a borrowing of money, 
but a bond fide sale and hiring of the roUing stock, and was valid against both the 
railway company and the directors [Yorkshire Hy. Waggon Co. v. Maelure, 21 Ch. D. 
309). 

A railway, part of which had been occupied by another company, but not opened 
by the company which made it, was held not to.be open for public traffic withm the 
Act [Be SeddgeUrt My., 19 W. R. 427 ; W. N. (1871), 3). 

Where a judgment was recovered for money due for services rendered both before 
and after the passing of the Act, the Act was held not to apply {fie Beddgelert Sy.). 

For form of order, see He Stafford and Uttoxeter Ey., W. N. (1868), 113 ; Contract 
Corporation v. Tottenham Ry. , ibid, 242 ; Seton, 422. See also note («) to sect. 6. 



RAILWAY COMPANIES ACT, 1867. 169 

V. If in any case where property of a company has beea taken in 30. & 31 Vict, 
execution a question arises whether or not it is liable to he so taken , «■ ■ 
notwithstanding this Act, the same may he heard and determined on Determina- 

. an application by either party by summons in a summary way to the q^ggtio^a 
Court out of which the execution issued, or if the Court is one of the respecting 
superior Courts of law, then to a judge of any one of those Courts, and executions, 
such determination shall be final and binding (o). 

(c) The rules 29 — 32 of the Order of 24 Jan. 1868, which regulate the practice 
under these sections (see 3 Ch. xlii.) are as follows : — 

29. Every petition under " The Railway Companies Act, 1867," sect. 4, shall be 
intituled in the matter of the Act, and in the matter of the company in question, 
and shall be marked either with the words "Lord Chancellor," and the name of 
one of the Vice -Chancellors, or with the words "Master of the Rolls." 
. 30. Such petition shall be served on the company only, but the Court may at the 
hearing, if it shall so think fit, adjourn the same for the purpose of service on such 
other parties, if any, as the Court shall think fit. 

31. Every order appointing a receiver or manager under the last-mentioned 
section, shall 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 money, to come to the hands of such receiver or manager. 

32. Every summons in Chancery under "The Railway Companies Act, 1867," 
sect. 5, shall be intituled in the matter of the said Act, and in the cause or matter 
in which the execution in question was issued, and such summons shall be issued 
out of the chambers of the judge to whose Court .such cause or matter is attached, 
and such rules and practice of the Court of Chancery as are applicable to summonses 
for the purpose of proceedings not originating in chambers, and to the proceedings 
thereunder, shall be applicable to such summons and the proceedings thereunder. 

The only evidence required in support of a petition by an unpaid judgment Evidence on 
creditor is an affidavit that he is such a creditor, and that his judgment debt is application, 
unsatisfied ; and that the company is a going concern carrying on its own business, 
and conducting its own traffic in the ordinary way {He Manchester and Milford Uy. 
Co., 14 Ch. D. 645, C. A.). 

A railway company which has never commenced to acquire the lands, or to What com- 
construot the railway authorised by its special Act, is not an "undertaking" panies not 
within the meaning of the Act, of which a receiver can be appointed {fie Birmingham within Act. 
and LiehfieU Junction Il.y.Co.,\%C\\..'D.\bh,'M..'&.). 

Wherever the judgment creditor of a railway company is unpaid, the appointment When 
of a receiver or manager is a matter of right ; and where the company is carrying receiver 
on its business in the ordinary way, conducting its own traffic arrangements, the appointed, 
appointment of a recei\:er is necessary within the meaning of the Act, and, as a 
general rule, the directors, or secretary, or some of them, will be appointed 
managers where they are acting fairly; and the order for the appointment of 
a manager wiU be made without prejudice to any application on the part of the 
directors to propose themselves, or some of their number,- to act as managers {fie 
Manchester and Milford Ry. Co., 14 Ch. D. 645). 

The powers of the receiver do not, it seems, extend to getting in unpaid calls (iJe 
Birmingham, and Lichfield Jwiction By. Co., 18 Ch. D. 165). 

Arrangements. 

VI. Where a company are unable to meet their engagements with Preparation 
their creditors, the directors may prepare a scheme of arrangement g^^^^g J ° 
between the company and their creditors (with or without provisions arrangement, 
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 * See Judi- 
principal office of the company, with a declaration in writing under Jg*7^''^g^34' 
the common seal of the company to the effect that the company are (2). ' 
unable to meet their engagements with their creditors, and with an 
affidavit of the truth of such declaration made by the chairman of the 



170 



RAILWAY COMPANIES ACT, 1867. 



30 & 31 Vict, 
c. 127, s. 6. 



Form of 
scheme. 



apply for 
copies 



board of directors and by the other directors, or tlie major part in. 
number of tiem, to tbe best of tbeir respective judgment and 
beHef(<?). 

(<?) For a form of scheme, see Se Teign Valley Ry. Co., 18 L. T. 809 ; and 
for leave given to vary a scheme when filed, see Re Camtrian My., 3 Ch. 278; 17 
L. T. 394. 

Form of The General Order of Jan. ^4, 1868, provides in the third schedule the following 

advertisement form for advertisement of the scheme : — 

for persons to In the Matter of the EaUway Company ; and 

Id. the Matter of the Kailway Companies Act, 1867. 

Notice is hereby given, that on the day of 

18 , a Scheme of Arrangement between the above-named company and their 
creditors [state here whether the seheim 'contains or not any provisions far settling the 
rights of any and what classes of shareholders as among themselves, or for raising addi- 
tional share or loam, capital, and which, and to what extent'] was filed in the Court of 
Chancery, and a copy of the said scheme will be furnished to any person requiring 
the same by the undersigned, or at the office of the company at 
on payment of the regulated charges for the same. 

A. and B., of [Agents for C. and D., of ], 

Solicitors for the Company. 

Ord. Jan. 24, The same order provides with reference to the preparation and filing of the 
1868. scheme as follows : — 

1. jEvery scheme to he filed in the Court of Chancery, ptirsitant to the statute 30 ^ 31 
'Fiet. c. 127, s. 6, and every declaration, affidavit, petition, summons, notice, or other 

proceeding relative thereto, shall he intituled in the matter of " The Railway Companies 
Act, 1867," and in the matter of the company in question. 

2. Every stie^ scheme shall he marked either with the words " Lord Chancellor," and 
the name of 'one of the Vice- Chancellors, or with the words " Master of the Rolls," and 
the matter of such scheme {unless removed by some special order of the Lord Chancellor or 
the Lords Justices) shall accordingly he attached to the Court of such Vice- Chancellor, or 
to the Court of the Master of the Rolls, as the case may he, in like manner and for the 
same purposes as causes are attached to a particular Cowrt. 

3. Every scheme to he filed as aforesaid shall he printed on paper of the same size and 
description, and in the same style and manner as bills in Chancery are required to 
he printed, or shall he written bookwise upon paper of the same size and description as last 
aforesaid. 

i. Every declaration- and affidavit to he filed as mentioned in the Gth section of the said 
Act shall he written* hookwise upon paper of tlie same size and description as that on 
which hills are printed. 

5. Every such scheme shall be filed in the o^ffke of the Clerks of Records and Writs,f 
and the declaration and affidavit required by section 6 of the said Act shall be, annexed to 
such scheme and filed at the same time therewith, and the Clerks of Records and IVriis 
shall not file any such scheme imless accompanied by such declaration and affidavit. 

6. There shall he indorsed upon every scheme so filed as aforesaid the name and address 
of the solicitor a/nd London agent [if any) of the company, and also the address for service 
of such solicitor in cases where an address for service is required by the General Orders oj 
the Court. 

7. Where a written scheme is filed, the person bringing the same to he filed shall, at 
the same time, leave with the Clerks of Records and JVritsf a fair copy thereof, and the 
Clerks of Records and TVrits are to examine such copy with the scheme filed, and return it 
so examined with a certificate thereon that it is correct and proper to he printed. 

8. The directors are then to cause the scheme to he printed from such certified copy, m 
paper of the same size and description, and in the same type, style, and manner, as hill 
are required to be printed, and, before tlie expiration of four days from the filing of th 
scheme are to leave a printed copy thereof with the Clerks of Records and Writs, with c 
written certificate thereon by the solicitor of the company that such print is a true copt 
of the scheme so certified, and after the expiration of such four days no evidence of th 
scheme having been filed shall he admissible imtil such printed copy thereof has been filed. 

9. Every fifth line of each page of a printed scheme shall be numbered. 

Copies of Scheme. 

Copies of 1". At any time after the expiration of four days from the filing of a scheme, whethe 

scheme. printed or written, any person may demand, by a requisition in writing, delivered at th 

principal office of the company, or at the office of their solicitor, or of his London agen 



Title of 
scheme and 
proceedings. 

Tobe attached 
to Court. 



To be printed. 



Form of 
affidavits, &c. 
* See now 
Ord. LXVI. 
infra. 
Filing of 
scheme, 
t See now 
Judicature 
(Officers) Act, 
1879; 

Ords.LX. and 
LXI. infra. 
Address for 
service. 
Filing a 
written 
scheme. 
To be printed 
in four days. 
Lines to be_ 
numbered. 



RAILWAT COMPANIES ACT, 1867. 171 

{ifatt!/) any number, not exceeding ten, of printed copies* of the scheme, and the copies 30 & 31 Vict. 
so required shall on such demand be delivered to the person so requiring the same, with 0. 127 s. 6.' 
a written certificate thereon by the solicitor of the company that they are true copies of 



the scheme filed. * See form of 

11. Hvery such copy is on delivery to be paid for at the rate of one halfpenny per folio, advertisement 
except in the case provided for by the 20th section of the said Act,f in which case it 'is to for such 

be paid for at the rate prescribed by the said Act. persons to 

12. The notice to be published in the " Gazette," of the filing of the scheme,^ shall be come in, 
signed by the solicitor of the company, or his London agent, and shall state whether the supra. 
scheme contains any provisions for settling and defining any rights of shareholders among Payment for 
themselves, or for raising any and what amount of share or loan capital, and which, and copies. 
shall set forth the name and address of the solicitor and London agent {if any) of the . p /», 
company, and may be in the form Ifo. 1 in the 3rd schedule hereto, with such variations ' ^ 
as the circumstances of the case may require. Form of 

13. When a scheme has been filed one of the Clerics of Records and Writs shall, at the notice. 
request of any person, give and sign a certificate of the fling thereof, or of the filing of a J See sect. 8, 
printed copy thereof; and such certificate may be in the following form, with such infra. 
variations as the circumstances of the case may require : — Certificate 

of filing 

In the Matter of the Railway Companies Act, 1867, and In the Matter scheme, 
of The RaEway Company. 

I do hereby certify that a [printed or ■written, as the case may be"] Scheme of Ar- 
rangement between the above-named company and their creditors, under the statute 
30 & 31 Victoria, chapter 127, section 6, was on the day of , 18 , 

duly filed in the High Court of Chancery in England, together with the declaration 
and af&davit required by the said statute [and that a printed copy of such scheme 
was on the day of duly filed in the said Court pursuant to the General 

Order of Court made in that behalf], as appears by my book. Dated, &o. 

A. B., 
Clerk of Records and Writs, of the High Court of 
Chancery in England. 

Vn. Alter the filing of the scheme, the Court may, on the applica- Stay of 
tion of the company on summons or motion in a summary Tray, restrain ^''™"^' 
any action against the company on such terms as the Court thinks 
fit(e). 

(«) Under a special Act it was provided that a company might issue debenture Restraint of 
stock to certain creditors, and a suspense period was created wdthan which no action actions, &o., 
was to be commenced -without leave, except in respect of liabilities contracted after during 
the passing of the Act, and it was held that the debenture stock so created was suspended 
within the protection of the Act, and that the holders thereof could not without period, 
leaive institute a suit for the purpose of obtaining payment of interest in arrear 
{London Financial Association Y. Wrexham Ry. Co., 18 Eq. 566); see Ite Cambrian Sy. 
Co., 3 Ch. 278 ; Se Devon and Somerset Ity., 6 Eq. 610, as to the jurisdiction to restrain 
suits by landowners under these sections while the scheme is maturing. 

As the scheme when confirmed will not bind (under section 18) such outside Whether 
creditors or unpaid landowners without their individual consent (only mortgagees, landowners 
holders of rent-charges, shareholders, and leasing companies, being bound by and outside 
majorities, as mentioned in ss. X — XIV.), the Court ought not during the maturing creditors not 
of the scheme, to suspend the remedies of such outside creditors or unpaid land- capable of 
owners {Re Cambrian Ry. Co., supra), nor without their written consent confirm any being bound 
scheme which purports to bind them {Re Sristol and North Somerset Ry. Co., 6 Eq. by majorities 
448), unless it is satisfied that a scheme is proposed in good faith which, if it reaches can be re- 
maturity, will afford a reasonable prospect of providing for the payment of the strained from 
claim of the person whose remedies are thus interfered with, and thus compensate suing, 
the claimant for the temporary suspension of his remedies {Re Cambrian Ry. Co., 3 
Ch. 278). See Robertson v. Wrexham, ^c, Ry. Co., 17 W. R. 137. 

When the scheme is confirmed and inroUed, outside creditors not included or No juris- 
bound by it may pursue their remedies without any leave of the Court {Re Teign diction under 
Valley My. Co., 17 W. R. 817 ; Ee East and West Junction Ry. Co., 8 Eq. 87, 91), and sects. 7 and 9 
this section and the 9th have no longer any application, as they only give the Court after inrol- 
an interim jurisdiction during the period of suspense {Re Potteries, Shrewsbury, and ment of 
North Wales Ry. Co., 5 Ch. 67). scheme. 

The scheme, though not confirmed within three months under section 17, infra, 
was held to be pending so far as regarded protection by interim orders against 
creditors {Robertson v. Wrexham, ^c, Ry. Co., 17 W. R. 137). 



172 



RAILWAY COMPANIES ACT, 1867. 



30 & 31 Vict, 
c. 127, s. 7. 

Ord. 24 Jan. 
1868. 

Undertakiiig 
as to damages. 



The Order of 24 Jan., 1868, provides as to restraining actions after eoheme filed, 
as foUows : — 

14. No order, under section 7 of the said Act, for restraining cm action against the 
company, by reason of a scheme having been filed, shall be made, except on an undertaking 
by the company to be answerable in such damages (if any) as the Court, or the judge in 
chambers, may think fit to award in the event of the plaintiff being ultimately held entitled 
to proceed with such action ; and on such further terms (if any) as the Court orjud^e may 
think reasonable. 



Notice in _^ VIII. Notice of the filing of the scheme shall be published in the 
"Gazette. « Q^zette " (/). 

(/) See Sohed. III. to the Order 24 Jan. 1868, cited in note (d), p. 170, mte. 

Stay of exe- IX. After such publication of notice no execution, attachment, or 
cutions, &o. other process against the property of the company (^r) shall be avail- 
able without leave of the Court, to be obtained on summons or motion 
in a summary way (K). 

Stay of scire (^) Unpaid calls are property of the company -within this section, and am injuMO- 

facias against tiou will issue to restrain execution against shareholders in a scire facias action (Me 

shareholders. Devon and Somerset Zy . Co., 6 Eq. 610). As to the circumstances under which a 

creditor will be allowed to pursue his remedies notwithstanding this section, see 

Griffiths v. Cambrian Mailway, 17 W. K. 979, decided under a special act containing 

similar provisions. 

Application (A) An application to issue execution notwithstanding the pendency of the 

by creditor scheme shouM, if it is confirmed, be made before the judge who sanctioned it 

after sanction (Sean of Christchwrch v. East and West Junction Railway, 17 W. E. 819). After the 

or inrolment inrolment of the scheme this section has no longer any application (Me Fotteries, fc. 

of scheme. Mail. Co., 5 Ch. 67). 



Assent by 

mortgagees, 

&c. 



Assent by 
holders of 
rentoharge, 
&o. 



Assent by 
preference 
shareholders. 



Assent by 

ordinary 

shareholders. 



X. The scheme shall be deemed to be assented to by the holders of 
mortgages or bonds issued under the authority of the company's special 
Acts when it is assented 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 the holders of debenture stock of the company when it 
is assented to in writing by three-fourths in value of the holders of such 
stock. 

XI. Where any rentcharge or other payment is charged on receipts 
of or is payable 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 rentcharge or other payment 
when it is assented to in writing by three-fourths in value of such 
holders. 

XII. The scheme shall be deemed to be assented to by the guaran- 
teed or preference shareholders of the company when it is assented to 
in writing as follows : If there is only one class of guaranteed or pre- 
ference shareholders, then by three-fourths in value of that class, and 
if there are more classes of guaranteed or preference shareholders than 
one, then by three-fourths in value of each such class. 

XIII. 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 caUed for that purpose. 



RAILWAY COMPANIES ACT, 1867. 173 

XrV. Where the company are lessees of a railway the scheme shall 30 & 31 Vict, 
be deemed to be assented to by the leasing company when it is assented °' ^^^' "' ■^*- 



to as follows : — - Assent by 

T 'i.* ■!_ -I leasing com- 

m writing by three-fourths in value of the holders of mortgages, jany. 

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 prefer- 
ence shareholders in the leasing company than one, then in writing 
by three-fourths iu value of each such class ; 

By the ordinary shareholders of the leasing company at an extra- 
ordinary general meeting of that company specially called for that 
purpose. 

XV. Provided that the assent to the scheme of any class of holders Assent of 

of mortgages, bonds, or debenture stock, or of any class of holders of creditors, &o., 

, ' •' not affected, 

a rentcharge or other payment as aforesaid, or of any class of guaranteed unnecessary. 

or preference shareholders, or of a leasing company, shall not be re- 
quisite ia case the scheme does not prejudicially affect any right or 
interest of such class or company. 

XVI. If at any time within three months (i) after the filing of the Application 
scheme, or within such extended time as the Court from time to time ^9^ confirma- 
thinks fit to allow, the directors of the company consider the scheme to scheme. 

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 any such application, when intended, shall be published in 

the Gazette. 

(i) A scheme was considered to be pending after the three months bo as to afford 
protection against creditors {Robertson v. Wrexham, ^e. Sy., 17 W. K. 137). 

XVII. After hearing the directors, and any creditors shareholders. Confirmation 
or other parties whom the Court thinks entitled to be heard on the °* scheme. 
application {k), 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 (l), assented to as required by this Act, and that 
no sufficient objection to the scheme has been established, may confirm 
the scheme. 

{/c) Debenture holders will not be heard, if there -was a statutory majority, unless -^yjjg ^jy 
in case of fraud (ije East and West Junction Ey., 8 Eq. 87). The Court required ^,g heard, 
the consent of outside creditors (who are not within the glasses of creditors who can /-> i. -^ 
be bound by a majority) before it confirmed a scheme, in Re Bristol and North '-'"™18 
Somerset Ry., 6 Eq. 448; but in Re Sotnerset and Dorset Ry., 18 W. E. 333, ^realtors. 
Stuart, V.-C., said that if a creditor came to oppose the confirmation, who could 
not show that his dissent was reasonable or based upon a due regard for his own 
interests, he would not regard the dissent of a creditor of that kind, but would 
confirm the scheme. In Re East and West Junction Ry. {ubi sup.) it was held 
that the assent of outside creditors was not wanted. In any case they ought not to 
be put in a better position by the scheme (Stevens v. Mid-Sants Rail. Co., 8 Ch. 
Z064). See also Re Manchester md Milford Ry., W. N. (1881), 121 ; Re Stafford Ry. 
W. N, (1872), 165, 174 ; 20 W. R. 921. As to unpaid vendors appearing on the 
petition and their costs, see Re Kington Ry., W. N. (1877), 33. Ord. 24 Jan. 

(l) The Order of Jan. 24, 1868, provides with reference to the petition for con- 1868. 
firmation of scheme, as follows : — Petition 

15. Every petition for confirmation of a scheme shall be presented by the directors or the to be by 
major part of them. Such petition shall not set forth the scheme, but only refer thereto ; directors. 



174 



RAILWAY COMPANIES ACT, 1867. 



30 & 31 Viot, and may he in the form M. 2, in the Zrd schedule hereto, with sueh mriations as the 
0. 127, B. 17. cirmmstancea of the ease may require. 



Company not 
to appear. 
24 Jan. 1868. 
Order under 
Eailway Act, 
1867. 



The following is the form referred to : — 



No. 2. Petition to confirm Scheme. 

In the Matter of the Railway 

Company ; and in the Matter of the Railway 
Companies Act, 1867. 

Directors of the ahove-named company 



Company not 
to appear. 

Hearing of 
petition for 
confirmation 
after notice. 



Advertise- 
ment of peti- 
tion to con- 
firm scheme. 



Purther notice 
directed in 
chambers. 



Parties to 
he heard in 
opposition. 



The humble petition of 
Showeth 

That on the day of , the directors of -the above-named company filed 

in this Honourable Court a Scheme of Arrangement between the above-named 
company and their creditors. 

Tour petitioners therefore humbly pray that the scheme so filed 
as aforesaid may be confirmed by the Order of this Honour- 
able Court. 
And your petitioners will ever pray, &o. 

16. The petitioners presenting such petition as aforesaid shall, for the purposes of such 
petition, be treated as representing the company, and the company shall not otherwise 
appear on the hearing of such petition. 

17. Wlien any petition to confirm a scheme is presented, the directors 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 tJie time of ttteh 

' application, and shall cause a notice of the presentation thereof to be inserted as follows 
(that is to say) : 

(1) In the case of a company whose principal office is within ten miles from the General 
Fast Office in the "London Gaaette,^^ jmd in such two London daily morning newspapers 
as the judge m chambers shall direct. 

(2) In the case of any other company, in the ^^ London Gaisette,''' and in sueh two local 
newspapers circulating in the district where the principal office of such company is situate, 
as the judge in chambers shall direct. 

Sueh 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 solicitor and London agent {if any) of 
the company, and may be in the form No. 3 in the 3rd schedule hereto, with such varia- 
tions as the circumstances of the case may require. 

The foUowiag is the form referred to : — 

In the Matter of the Railway Company, and In the Matter 

of the Railway Companies Act, 1867. 

Notice is hereby given that a petition was, on the day of 18 , pre- 

sented to the Lord Chancellor [or the Master of the Rolls] by the Directors of the 
above-named company, praying the confirmation of a Scheme of Arrangement 
between the said company and their creditors, filed in the Court of Chancery on 
the day of . And that the said petition is directed to be heard before 

the Vioe-Ohancellor Sir \or before the Master of the Rolls] on the day 

of , 18 , and any person whose interests are afEected by such scheme, and 

who may be desirous to oppose the making of an order for the confirmation thereof 
under the above Act, should enter an appearance at the Office of the Clerks of 
Records and Writs on or before the day of , 18 , and appear by him- 

self or counsel at the hearing of the said petition. And a copy of the scheme and 
petition will be furnished to any person requiring the same by the undersigned, or 
at the office of the company, at , on payment of the regulated charge for the 

same. 

A. and B., of [Agents for C. and D., of ], Solicitors for the 

Petitioners. 

18. The, petition shall not come on to he heard until at least fourteen clear days after 
the insertion of such notice as aforesaid. Such notice shall, at least once in every entire 
weeh, reckoned from Sunday morning to Satv/rday evening, which shall have elapsed 
between the time of the first insertion tliereof, and the day on which such petition is 
directed to come into the paper for hearing, he again inserted in such two London or local 
newspapers as aforesaid on such day or days as the judge in chambers shall direct. 

19. Any creditor, shareholder, or other party 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 at the Office of the Clerks 



RAILWAY COMPANIES ACT, 1867. 175 

of Secords and Writs ; and, in default of so doing, shall not he entitled to he heard, 30 & 31 Vict. 

unless hy the special leave of the Court. o. 127, s. 17. 
20. Any person so entering an appearance shall he deemed to have suhmitted himself to 



the Jurisdiction of the Court as to the payment of costs and otherwise. Jurisdiction 

as to costs. 
Rules 21 — 28 of the Order of 24th. Jan. 1868, which related to the enrolment of Enrolment. 
the Scheme, -were annulled by R. S. C, April, 1880. See now as to enrolment, Ord. 
LXI. rr. 10, 11, infra. 

XVULI. Tlie scheine -vrlien confirmed shall be enrolled in tlie Enrolment of 
Court (m), and thencefortli the same shall he binding and effectual to ^° ®™®" 
all intends, and the proyisions 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. 

(m) An application by a judgment creditor to restrain a company from enrolling 
an order confirming a scheme was granted under the powers given by the 35th rule, 
post, p. 176 {Se Devon and Somerset Ey., 6 Eq. 615). 

XIX. Notice of the confirmation and enrolment of the scheme shaU Notice of 

m TT.i t ' ,1 r^ , t confirmation 

be published m the Ctazette. of scheme. 

XX. The company shall at aU times keep at their principal oflB.ce Company to 

printed copies of the scheme, when confirmed and enrolled, and shall ^^^? prmted 
r r ' > copies or 

seU. such copies to all persons desiring to buy the same at a reasonable scheme for 

price, not exceeding sixpence for each copy. ^^^®' 

If the company fail to comply with this provision they shall be liable Penalty for 
to a penalty not exceeding twenty pounds, and to a further penalty not 
exceeding five pounds for every day during which such failure con- 
tinues after the first penalty is incurred, which penalties shall be 
recovered and applied as penalties under " The Eailways Clauses Con- 
solidation Act, 1845," are recoverable and applicable. 

XXI. "Where a company whose principal oflfice is situate in England Provision for 
have a railway or part of a railway in Scotland the following provi- raUways or 
sions shall have effect : part in Soot- 

(1.) Any scheme under this Act shall be filed in the Court of 
Chancery* in England ; oaKcl; 

(2.) Where, after the filing of the scheme, any person who is not 1873,8.34(2). 
amenable to the jurisdiction of the Court of Chancery* in England 
brings any action against the company in Scotland, the Court of 
Session may, on the application of the company by petition in a 
summary way, sist, stay, or interdict the same on such terms as 
the Court thinks fit ; 

(3.) Notice of the filing of the scheme shall be published in the 
" Edinburgh Gazette," and after such publication no diligence 
against the property of the company in Scotland shall be available 
for any person who is not amenable to the jurisdiction of the Court 
of Chancery in England without the leave of the Court of Session, 
to be obtained on petition in a summary way. 

In this section the term " Court of Session " means either division of 
the Ooiirt of Session, or in time of vacation the Lord Ordinary oflBciating 
on the Bills. 



176 HAIL WAY COMPANIES ACT, 1867. 

30 & 31 Vict. XXII. The Lord Phancellor of Great Britain, with, the advice and 
"' ' ^' • assistance of the Lords Justices of the Court of Appeal in Chancery, 
General orders the Master of the EoUs, and the Vice-ChanceUors, or any two of those 
for regulation judges, and the Lord Chancellor of Ireland, with the advice and assist- 
Court of ance of the Lord Justice of Appeal in Chancery and the Master of the 

Chancery. Eolls, or one of them, may from time to time make general orders for 

the regulation of the practice of the Courts of Chancery in England 

and Ireland jespectively under this Act (?i). 

{«) The ofder of 24th January, 1868, provided as to the general practice under 
this Act as follows : — 

Orders in 33. All orders made m chamiers under " The Sailway Companies Act, 1867," shall lie 

chambers drawn up in chambers tmless specially directed to be drawn up by the registrar, and shall 

under the be entered in the same manner and in the same office as other orders drawn wp in chambers. 

Act. 34. In cases not expressly provided for by the said Act or by the rules of this order, the 

Greneral General Orders and practice of the Court {including the course of proceeding and practice 

practice '" '^^ judges' chambers, and the course of proceeding and practice as to rehearings before 

ap-plicable ^^^ """* j^9^, or before the Lord Chancellor or Lords Justices) shall, so far as such 

' General Orders and practice are applicable and not inconsistent with the said Act or this 
order, apply to all proceedings in the Court of Chancery under the said Act. 
Powers of 35. The power of the Cowrt a/nd of the judge in chambers to enlarge or abridge the time 

judge in for doing any act or taking any proceeding, to adjourn or review any proceeding, and to 

ohamhers. give amy direction^ as to the course of proceeding , shall be the same in proceedings in Chancery 

under the said Act, as in proceedings under the ordinary jurisdiction of the Court. 
Order to be 38. The general interpretation clauses contained in the Consolidated Orders of the Court 

a Greneral of Chancery shall extend and apply to this order, and this order shall be deemed one of the 

Order. General Orders of the Court. 

Date of order. ^^- ^^^^ order shall come into operation on Monday the 3rd day of February, 1868, and 
shall apply to all schemes filed under the said Act, and to all proceedings in Chancery to 
be had vmder the same Act, provided always, that all proceedings taken under the said Act 
before this order shall have come into operation shall have the same validity as they would 
have had if this order had not been made. 

Loan Capital. 
Priority of XXIII. AH money borrowed or to he borrowed hy a company on 

mortgage or hond or debenture stock under the provisions of any Act 
' authorizing the borrowing thereof shall have priority against the 
company and the property from time to time of the company over all 
other claims on account of any debts incurred or engagements entered 
into by them after the passing of this Act : Provided always, that this 
priority shall not afEect any claim against the company in respect of 
any rentcharge granted cr to be granted by them in pursuance of 
"The Lands Clauses Consolidation Act, 1845," or " The Lands Clauses 
Consolidation Acts Amendment Act, 1860," or in respect of any rent 
or sum reserved by or payable under any lease granted or made to the 
company by any person in pursuance of any Act relating to the com- 
pany which is entitled to rank in priority to, or pari passu with, the 
interest or dividends on the mortgages, bonds, and debenture stock ; 
nor shall anything hereinbefore contained affect (o) any claim for land- 
taken, used, or occupied by the company for the purposes of the rail- 
way, or injuriously affected by the construction thereof, or by the 
exercise of any powers conferred on the company. 

(o) These words only relate to the contents of this section, and landowners are 
not exempted from the operation of the previous clauses of the Act [Re Cambrian 
Ey. Co., 3 Ch. 278). 



EAILWAY COMPANIES ACT, 1867. 177 

_ [Sects. 2t — 26 relate to the issue of railway debenture stoot, subject to the pro- 30 & 31 Vict 

visions of the Companies Clauses Act, 1863. By sects. 27—29, raUwaycompanies o 127 

may issue shares or stock at a discount. Sect. 30 relates to the audit of railway ss. 24—37. 
accounts. By sects. 31 — 35 the provisions as to abandonment of raUwavs under 



stat. 13 & H Vict. c. 83, are amended, and it is provided that on the abandonment Sections 
of a railway being authorized, the parliamentary deposit shaU be paid out to the XXIV.— 
persons who would have been entitled to it if the railway had been opened ; see XXXVII 
9 & 10 Vict. 0. 20, p. 49, ante. Sect. 36 amended sect. 85 of 8 & 9 Vict. c. 18 ; see 
marginal note, p. 46, ante. Sect. 37 relates to the costs of arbitrations as to lands 
taken under the Lands Clauses Act.] 



JUDGMENT ACT, 1864. 27 & 28 vict. 

0. 112. 

27 & 28 VICT. Cap. 112. 



An Act to amend the Law relating to future Judgments, Statttte-i, and 
Recognizances. [29th July, 1864.] 

Whereas it is desirable to assimilate the la-w affecting freehold, 
copyhold, and leasehold estates to that affecting purely personal 
estates in respect of future judgments, statutes, and recognizances (o) : 
Therefore be it enacted, &c. as foUows : — 

(a) This must mean common law recognizances, and not those which are entered 
into by persona who give security to the Court of Chancery (now the Chancery 
Division), for the latter are never registered but enrolled. See Ksher on Mortgages, 
111, note (0). 

I. No judgment, statute, or recognizance to he entered up after the Future judg- 

passing of this Act shall affect any land (of whatever tenure) until ^^^^' ^-y 

such land shall have been actually delivered in execution {h) by virtue land until 

of a writ of elegit or other lawful authority (c) in pursuance of such ^^^^ delivered 
. ° . ./ \ / JT jn execution, 

judgment, statute, or recognizance. 

(b) These words mean that in the case of lands as in the case of chattels no Hen Priority of 
is obtained by a delivery of the writ, unless followed by a return to the writ and judgments 
actual execution, but the question of priority of judgments inter se, depends on the inter se. 
date at which the active step of delivery of the writ to the sherifi was taken 
{Champneya v. Bin-land, 19 W. R. 148 ; JRe Cowhridge Ry., 6 Eq. 413 ; Gtiest v. Coio- 
bridge Ry., 6 Eq. 619; Se Bailey, W. N. (1869), 43 ; Se Duke of Newcastle, 8 Eq. 
700 ; Earl of Cork v. Susaell, 13 Eq. 210). 

(«) The Act does not apply to an interest which cannot be taken in execution, e. g., Interest 
a remainder (Se South, 9 Gh. 369). If there is any obstacle, e.g., if the debtor's which cannot 
interest is an equity of redemption, the creditor's remedy was to institute an action be taken in 
to remove the obstacle {Se Cowhridge Sy., 5 Eq. 413 ; Thornton y. Finch, 4 Giflf. 515 ; execution. 
Guest V. Cowhridge Sy., 6 Eq. 619 ; 17 W. R. 7 ; Beckett v. Buckley, 17 Eq. 435 ; j-auitable 
Satton V. Maywooi, 9 Ch. 229 ; WelU v. Xilpin, 18 Eq. 298). interests 

Under the present practice it is not necessary to institute a fresh action for the 
purpose; and "equitable execution," as it is called, may be obtained by the 
appointment of a receiver in the original action {Anglo-Italian Bank v. Bavies, 9 
Ch. D. 275 ; Smith v. Cowell, 6 Q. B. D. 75 ; Salt v. Cooper, 16 Ch. D. 644) ; who 
may be appointed even after final judgment {Salt v. Cooper). Nor is it necessary 
now for the creditor previously to sue out an elegit where the interest is not 
extendible {Ex parte Evans, Se Watkins, 11 Ch. D. 691 ; 13 Ch. D. 252) ; and a 
receiver may be appointed of debts and sums of money to which garnishee proceed- 
ings are not applicable {Westhead v. Siley, 25 Ch. D. 413). A receiver may also be 
appointed of the separate estate of a married woman at the instance of a solicitor 
whose bill she had taxed under the Solicitors Act, 1843 {Se Peace, 24 Ch. D. 405). 



JUDGMENT ACT, 1864. 



27 & 28 Vict. 
0. 112, s. 1. 

Sequestration. 

Right of 
judgment 
creditor to 
redeem. 

Interpreta- 
tion of terms. 



Creditor to 
whom land 
delivered in 
execution 
entitled to 
obtain sum- 
mary order. 



"Actually 
delivered in 
execution." 
Sale at in- 
stance of 
judgment 
creditor. 
Railway Com- 
panies Act, 
1867. 



As to the power' of the Court to direct inquiries hefore appointing a receiver, see 
Ord. L. r. 15a, infra. 

Where persona holding the debtor's land under a voluntary conveyance^ yielded 
their claims and gave up possession to sequestrators, this was held delivery in 
execution by lawful authority (Re Rush, 10 Eq. 442). 

As to the judgment creditor's right to redeem prior incumbrances, see Mildred v. 
Austin, 8 Eq. 220. 

n. In the construction of this Act the term " judgment " shall be 
taken to include registered decrees, orders of Courts of Equity and 
Bankruptcy, and other orders having the operation of a judgment ; 
and the term " land " shall he 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 deceased persons. 

[By sect. 3 every writ or other process of execution of any such judgment, 
statute or recognizance, by virtue whereof any land shall have been actually 
delivered in execution, shall be registered in the name of the debtor. See 23 & 24 
Vict. o. 38, s. 2, p. 104, ante. The registration may be made before the return to 
the writ, Ghampmys v. Bw/rland, 19 W. E.. 148.] 

IV. Every creditor to whom (d) aisyj land of his debtor shall have 
been actually delivered in execution ((^c?) by virtue of any such judg- 
ment, 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 (e) 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 aU 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 ; 
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 be 
adopted and followed, so far as the same may be found conveniently 
applicable (/). 

Id) A creditor who had obtained an order in an administration suit against a 
defendant for payment of money into Cowrt, which order had been enforced by the 
sequestration of tiie Court, was held not to be within the section, the land having 
been delivered in execution not to him but to the Court [Johnson v. Burgess, 15 Eq. 
398). 

(dd) That is, "delivered in execution"; see Angh-Itaiian Bank y. Davies, 9 
Ch. D. p. 283. 

[e) The section applies only to judgments entered up after the passing of the Act, 
29th July, 1864 ; see sect. 1, and Re Isle of Wight Ferry Co., 34 L. J. Ch. 194 ; 11 
Jur. N. S. 279. 

A railway company's lands may be ordered to be sold under the section ; but the 
Court will not order a sale if the debtor's interest is not of a saleable nature, but 
will direct inquiries [Re Bishop's Waltham Ry. Co., 2 Ch. 382 ; Gardner v. Zondon, 
Chatham and hover Ry. Co., ibid. 386) ; and see now 30 & 31 Vict. o. 127, ante, p. 
167, protecting the rolling stock and plant of railways from execution, and autiio- 
rising railway companies, who are unable to meet their engagements, to file schemes 
of arrangement, and after filing such scheme to apply for stay of actions, suits, 
and executions. 



JUDGMENT ACT, 1864. jtq 

f/]. J°' ^o™ of inquiries in the case of lands belonging to a tailway company, 27 & 28 Vict 
rn W W'^f«?lN-^"",?i-^r"*"-^2/- Co., 2 Eq. 262; and lie Fcntnor Hariolr L 112, c 4 
Co., W.N. (1866 , 9; 13 L. T. 793; and for form of inquiries in ordinary oases, ' 

Bee^ parte Clark G N. E. 335, and compare Seton, U40. Where surplus lands Form of 
Co 9^ 668^ ^ '^ ^^ *^'' ^ ^'^^ '^^ ordered -without inquiries {Se Colne Valley inquiry. 

V . If it ahaU appear on making such inquiries that any other debt Where there 
due on any judgment, statute, or recognizance is a charge on such oreditora 
land, the creditor entitled to the benefit of such charge (whether prior notice of' sale 
or subsequent to the charge of the petitioner) shall be served with ^^l ^^^ 
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, according to their respective priorities {g). 

(g) See Guest v. Cowiridge Ry., 5 Eq. 413 ; Ee Duke of Neioeastle, 8 Eq. 700. 

yi. Every person claiming any interest in such land through or Parties claim- 
under the debtor, by any means subsequent to the delivery of such j°^ interest 
land in execution as aforesaid, shall be bound by every such order for debtor bound 
sale, and by all the proceedings consequent thereon. ^7 °^^^^ for 

VII. This Act shall not extend to Ireland. -g ,' , , 

Act. 



PAETITION ACT, 1868. 3i & 32 vict. 

0. 40. 
31 & 32 VICT. Cap. 40. 



An Act to amend the Law relating to Partition. 

[25th June, 1868.] 
Be it enacted, &c. as foUows : 

I. This Act may be cited as the Partition Act, 1868. Short title. 

n. In this Act the term " the Court " means the Court of Chancery As to the 
in England (a), the Court of Chancery in Ireland, the Landed Estates q^j^ ^ 
Court in Ireland, and the Court of Chancery of the County Palatine of 
Lancaster, within their respective jurisdictions. 

(a) Now the Chancery Division of the High Court (Jud. Act, 1873, sect. 34 The Court. 
(2), infra. 

m. In a suit for partition where, if this Act had not been passed, a Power to 
decree for partition might have been made (oa), then if it appears to ^ °^gj. ^ °jq 
the Court that, by reason of the nature of the property to which the instead of 
suit relates, or of the number of the parties mterested or presumptively ^'^'on. 
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 

n2 



180 



PARTITION ACT, 1868. 



31 & 32 Vict. 
c. 40, o. 3. 



" Parties 
intereisted." 

jJ^Act retro- 
Bpeotive. 
Sale of 
interest 
subject to 
executory 
devise over. 
Sale of part. 
Sale, where 
ordered. 



Form of 
order. 



distribution of tte proceeds would be more beneficial for the partif 
interested than a division of the property between or among them, ti 
Court may, if it thinks fit, on the request of any of the partie 
interested (J), and notwithstanding the dissent or disability of an 
others of them, direct a sale of the property accordingly, and ma 
give all necessary or proper consequential directions {bb). 

(oa) See Siffga v. Peacoch, 20 Ch. D. 200 ; 22 Ch. D. 284, and Boyd v. Allen, 5 
Ch. D. 622 ; 31 W. E. 644, cited in note (c) to sect. 4; Miles v. Jarvis, W. !■ 
(1883),. 203. 

(i) Incumbrancers upon the shares of persons entitled in conmion to real estai 
are parties interested within the section {Davenport v. King, W. N. (1883), 133 
31 W. E. 911). 

(bb) As to the Act being retrospective, see Lys v. Lys, 7 Eq. 126 ; Fryory. Fry or. 
19 Eq. 595. 

Where property had been left to three persons, subject to an executory devis 
over, if all died without issue, 'the Court directed a sale, subject to the executor 
gift over {Groves v. Carb^t, 29 L. T. 129; W. N. (1873), 29). 

A decree was made for sale of part of a property and partition of the rest {RoebiM 
V. Ohadebet, 8 Eq. 127). 

This section gives the Court power to sell where for any reason it thinks a saJ 
would be more beneficial than a partition ; and the sale may be directed on tb 
application of any person interested {Drinkwater v. Eatcliffe, 20 Eq. 528). Th 
power is discretionary and is not controlled by the provisions of sect. 5 {Gilbert i 
Smith, 11 Ch. I>. 78, afBrmed, nam. Fitt v. Jones, 5 App. Gas. 651). The ten 
"beneficial" means beneficial in a pecuniary sense {Drinkwater v. FatcUffe) ; se 
also Allen v. Allen, 21 TV. R. 842. A sale was directed where the propert 
consisted of a farnihouse and buildings and thirty acres of land divisible int 
thirty-six shares {Drinkwater v. Eateliffe) ; and so, where houses were divisible int 
336 parts, and the owners of 63 parts requested a sale {Gilbert v. Smith, afBrmet 
nam. Fitt v. Jones). But a sale must be more beneficial for all parties intereste 
{Corporation of Stiddersjield-v. Jaoomb, W. N. (1874), 80; Fleming v. Crouch, W. 1> 
(1884), 111). 

If the plaintiff claims a sale, he should allege in his pleadings that it will be moi 
beneficial than a partition {Fvaiis v Fvans, W. N. (1883), 48 ; 31 W. R. 495). 

For form of order see Seton, 1005, No. 3 ; as varied in Sykes v. Sehojield, 1 
Ch. D. 629 ; Fe Sardinum, 16 Ch. D. 360 ; Waits v. Bingley, 21 Ch. D. 674 ; 3 
W. R. 698. 



Sale on 
application 
of certain 
proportion 
of parties 
interested. 



What discre- 
tion the 
Court has 
under this 
section. 



IV. 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 o 
parties interested, individually or collectively, to the extent of on 
moiety or upwards in the property to which the suit relates, reques 
the Court to direct a sale of the property and a distribution of th 
proceeds instead of a division of the property between or among th 
parties interested, the Court shall, unless it sees good reason to th 
contrary, direct a sale of the property accordingly, and give all neces 
sary or proper consequential directions (c). 

(c) ' ' The 4th section seems to me to be perfectly distinct from the 3rd, for wherea 
" the 3rd section in terms applies only where the Court is satisfied that a partitio 
" is inconvenient and not beneficial for the parties, there is no such condition in 
" serted in the 4th section; and whereas under the 3rd section a discretionar 
" power was given to the Court to order a sale, if it thought a sale more beneficis 
' ' than a partition, the 4th section makes it imperative on the Court, in a certai 
" state of circumstances, to order a sale, and if less than half desire a partition, the 
' ' the half requiring the sale shall have the preponderating voice, and the Com 
" shall be bound to give them a sale wholly irrespective of the 3rd section. Bu 
" stUl there is a certain discretion left to the Court, so that the Court can refuse 
" sale where it is manifestly asked through vindictive feeUng, or is on any otht 
" ground unreasonable." — Fer Lord Batherley, in Femberton v. Barnes, 6 Ch. 68{ 
See also Ia/s v. Ijys, 7 Eq. 126 ; Saxlon v. liartUy, W. N. (1879), 94 ; 27 W. R. 6i; 
where a sale was refused ; Wilkinson v. Jobems, 16 Eq. 14, where it was held ths 



PARTITION ACT, 1868. Ig]^ 

though the owner of one moiety of property was yearly tenant of the whole, and 31 & 32 Vict, 
occupied it for commercial purposes, and also resided thereon, this was no sufficient u. 40, u. 4. 

reason against a sale under the section ; Houghton v. Gibson, "W. N. -(1877), 32 ; 46 

L. J. Ch. 366 ; 25 W. R. 269 ; Rowe v. Gray, 5 Ch. D. 263, where it was held that • 
the fact that the income of an infant defendant was likely to he materially dimi- 
nished was not a good reason against a sale (but see Langmead v. Cockerton, W. N. 
(1877), 43 ; 2b W. R. 316) ; Forter v. lopes, 7 Ch. D. 358 ; Flemingy. Crouch, "W". N. 
(1884), 111. A married woman, tenant for life of a moiety for her separate use 
with remainder as she shall appoint, is an owner of that moiety within the section 
{^Parker v. Trigg, W. N. (1874), 27). 

Where there is a subsiiting trust for sale the Court has no jurisdiction under the Trust for 
Act at all, the property being money and not land {Biggs v. Peacock, 22 Ch. D. 284 ; sale. 
20 Ch. D. 200) ; secus, where there is a mere power {Boyd v. Allen, 24 Ch. D. 622 ; 
31 W. R. 544). See also Taylor v. Grange, 15 Ch. D. 165 ; 13 Ch. D. 223 ; Swaine 
V. Denby, 14 Ch. D. 326, where the testator had himseK fixed the time at which a 
sale was to take place, audit was held that the Court 'could not anticipate it. i^- 

V. In a suit for partition where, if this Act had not been passed, a Any party 

decree for partition might have been made, then if any party interested "fy '^^ ^°^ 
'■ ° . ' J r J gale unless 

in the property to Tyhich the suit relates requests the Court to direct a other parties 

sale of the property* and a distribution of the proceeds instead of a Purchase 
,....,, share of party 

division of the property between or among the parties interested, the desiring sale. 

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 
necessary or proper consequential directions, and in case of such under- 
taking being given the Court may order a valuation of the share of the 
party requesting a sale in such manner as the Court thinks fit, and 
may give all necessary or proper consequential directions (c?). 

{d) The 3rd and 4th sections haying provided that a decree for sale shall be made Sale on 
when a sale is beneficial, or when persons entitled to more than a moiety of the pro- application 
perty ask for it, the 5th section is an extension, not a limitation, of those sections, of any party 
and provides that any party, plaintiff or defendant, may ask for and have a sale entitled, 
whether the Court considers it beneficial or not, unless the other parties interested 
undertake to purchase the applicant's share {Drinkwater v. Batcliffe, 20 Eq. 528 ; 
Gilbert v. Smith, 11 Ch. D. 78). If the other parties undertake to purchase the 
applicant's share, and so prevent the sale of the property as a whole, the applicant 
for the sale of the property as a whole may decline to sell his share, and may with- 
draw his application and ask for a partition {Williams v. Games, 10 Ch. 204). See, 
however. Lord Satherley's remarks as to the connection of ss. 3, 4, 5, 6, in Pember- 
ton v. Barnes, 6 Ch. 685. 

VI. On any sale under this Act the Court may, if it thinks fit, allow Authority for 
any of the parties interested in the property to bid at the sale, on such ^^^ ^^ ° ^ " 
terms as to non-payment of deposit, or as to setting ofE or accounting 

for the purchase-m6ney or any part thereof instead of paying the same, 
or as to any other matters, as to the Court seem reasonable (e). 

(e) The party having the conduct of the sale vriU not usually be aUowed to bid Leave to bid. 
( Verrall v. Cathcart, W. N. (1879), 100 ; 27 W. R. 646) ; but under special circum- 
stances this may be permitted {Pennington v. Dalbiac, 18 W. R. 684) ; see also Wil- 
kinson T. Joberns, 16 Eq. 14 ; Houghton v. Gibson, W. N. (1877), 32 ; 25 W. R. 269 ; 
46 L. J. Ch. 366. 

VII. Section thirty of the Trustee Act, 1850, shall extend and apply Application of 
to cases where, in suits for partition, the Court directs a sale instead of trustee Act. 
a division of the property (/). 

(/) See sect. 30 of the Tnistee Act, 1850, ante, p. 77, and note thereto. Sect. 1 



182 



PAETITION ACT, 1868. 



31 & 32 Viot. 
0. 40, s. 8. 

Application 
of proceeds 
of sale. 



Leases and 
Sales of 
Settled 
Estates Act, 
1856. 



Sale out of 
Court. 



Judgment for 
sale, how far 
a conversion. 



Parties to 

partition 

suits. 



of the Trustee Extension Act, 1852, applies to sales under the Partition Acts, and 
is not limited to oases of persons under disability {Beckett v. Sutton, 19 Ch. D. 646). 

VIII. Sections twenty-tkree to twenty-five (both inclusive) of the 
Act of the session of the nineteenth and twentieth years of her Majesty's 
reign (chapter one hundred and twenty), " to facilitate leases and sales 
of settled estates " (g), shall extend and apply to money to be received 
on any sale effected under the authority of this Act (A). 

(g) The Leases and Sales of Settled Estates Act, 1856, the 'Act here referred to, 
was repealed by the Settled Estates Act, 1877, s. 58, but this does not affect the 
application of these sections to proceedings under the Partition Act, 1868 ; see 
Mordaunt v. Benwell, 19 Ch. D. 302 ; ReBarlcer, 17 Ch. D. 241. The sections are as 
follows : " 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 reserved on any lease of earth, 
coal, stone, or minerals as aforesaid, may, 3 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 pm-te the applicant 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 p^ment to any person becoming absolutely entitled ' ' (sect. 23). 

" 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 the 
money had been invested iu the purchase of land" (sect. 24). 

" TJntil the money can be applied as aforesaid, the same shall be from time to 
time invested in Exchequer BUls, or in Three per Centum Consolidated Bank Annui- 
ties, 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 been entitled 
to the rents and profits of the land if the money had been invested in the purchase 
of land" (sect. 25). 

The corresponding sections of the Settled Estates Act, 1877, are ss. 34 — 36. 

(A) A sale may be directed to take place out of Court, and without bringing the 
proceeds of sale into Court {Hayward v. Smith, W. N. (1869), 37 ; 20 L. T. 70 ; 
Chuhl V. Pettipher, W. N. (1872), HO). But the Court refused to direct payment of 
the proceeds of sale to trustees where the only persons interested were a married 
woman and an infant [Eigga v. Dorkis, 13 Eq. 280), and where some of the persons 
interested were married women resident in Australia (Aston v. Meredith, 13 Eq. 492) ; 
and see Strugnell v. Strugnell, 27 Ch. D. 258. A judgment for sale in a partition 
action converts the shares of parties not under disability who die before the sale 
(Arnold v. Dixon, 19 Eq. 113 ; Steed v. Freeee, 18 Eq. 192) ; and this is also the case 
with respect to the shares of infants (Myett v. Mekin, 25 Ch. D. 735), or married 
women who may have re- converted, or consented to the sale (Wallace v. Greenwood, 
16 Ch. D. 362) ; and where a married woman has elected to treat the property as 
converted (Fowler v. Scott, 19 W. E. 972). In the case of persons under disability, 
however, an equity for re-conversion arises by force of the above sections of the 
Settled Estates Act, 1856 ; and consequently the share of an infant (Foster v. Foster, 
1 Ch. D. 588), of a married woman who has done nothing to affect her equity to 
re-conversion (Mildmay v. Quicke, 6 Ch. D. 553), and of a lunatic (Grimviood v. 
Bartels, W. N. (1877), 177 ; 25 "W. R. 843 ; Se Barker, 17 Ch. D. 241 ; Jte Fares, 
12 Ch. D. 333), so dying, wiU be treated as realty ; but the heir takes it as personal 
estate (Mordav/nt v. Benwell, 19 Ch. D. 302). Tte share of a married woman who 
elects by examination in Court to take it as personal estate may with her consent 
be paid to her husband (Stamdering v. Ball, 11 Oh. D. 652). "Where the fund was 
under 200Z. it was paid to her on her separate receipt, without separate examina- 
tion, on an affidavit of no settlement ( Wallace v. Greenwood) . See further as to 
married women, the Married Women's Property Act, 1882, infra. 

IX. Any person who, if this Act had not been passed, might have 
maintained a suit for partition, may maintain such suit against any one 



PARTITION ACT, 18G8. Ig3 

or more of the parties interested, -without serving the other or others 31 & 32 Viot. 

(if any) of those parties ; and it shall not be competent to any de- °' *^' °- ^ 

fendant in the suit to object for want of parties ; and 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 ; but all persons, who, if this Farther 

Act had not been passed, would have been necessary parties to the consideration. 

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 ; and all such persons may have liberty to attend the proceedings ; 

and any such person 'may, within a time limited by general orders, 

apply to the Court to add to the decree or order («). 

(i) A sale cannot be ordered until aU persons interested are before the Court Where an 
UllildmayY. Quiche, 20E<f. 537), or service on absent persons has been dispensed -with order for sale 
(Partition Act, 1876, as. 3, 4, post). If all persons interested are parties, then, if wUl be made, 
the title is proved at the hearing, an immediate judgment for sale may be given 
(Leesy. Coulton, 20 Eq. 20; Gilbert y. Smith, 2 Ch. D. 686; Surnelly. Burnell, 11 
Ch. D. 213) ; but if their titles are not proved at the hearing an order for sale may- 
be made conditional on it being certified that all persons interested are parties 
{Senior v. Hereford, 4 Ch. D. 494 ; Seton, 1004, 1005). If all persons interested are 
not parties, the Court can only order a sale on further consideration, or give liberty 
to apply in chambers with reference to a sale, when it shall have been certified that 
all persons interested are either parties or have been served -with notice of the judg- 
ment {Mildmay\. Quiche; Buckingharmr. Sellick, 22 L. T. 370; Powell Y. Powell, 10 
Ch. 130 ; Gilbert v. Smith, 2 Ch. D. 686), or the Court dispenses with service on the 
absent party, or presumes his death [Jackson v. Lomas, 23 W. E. 744 ; Mawlinson v. 
Miller, 1 Ch. D. 52). An inquiry may be directed as to inoumbrances [Fawthrop v. 
Stoehs, W. N. (1884), 118). 

The application for a sale should be made in the judge's chambers, though 
inquiries may be directed in a district registry {Syhea v. Schofield, 14 Ch. D. 629). 

Trustees represent their cesluia que trmt in actions for partition or sale {Stace v. Trustees 
Gaffe, 8 Ch. D. 451 ; Goodrich v. Marsh, W. K. (1878), 186; Simpson v. Demy, 10 represent 
Ch. D. 28). cestuis que 

The Act does not compel the Court to act in the absence of any parties interested trmt. 
{Dodds V. Gronow, 20 L. T. 104 ; 17 W. R. 511 ; Lester v. Alexander, W. N. (1869), Service on 
75) ; and where a decree for sale had been made in the absence of such parties who parties not 
were out of the jurisdiction, the Court refused to allow the decree to be acted on in before the 
their absence, and directed notice to be given to them by advertisement [Peters v. Court. 
Bacon, 8 Eq. 125 ; and see Teall v. Watts, 11 Eq. 213) ; and when the parties out of 
the jurisdiction were interested in the legal estate it was held that they must be 
served [Hwrry v. Surry, 10 Eq. 346 ; 18 W. R. 829) ; but not where the legal estate 
was in trustees who were before the Court [Silver v. Udall, 9 Eq. 227). 

The words " further consideration " in this section do not necessarily imply that " Further 
there must be a further eonsideratiou in Court [Powell v. Powell, 10 Ch. 130). The considera- 
Court may give liberty to apply that the hearing on further consideration may be in tion." 
chambers [Gilbert v. Smith, 2 Ch. D. 686 ; 24 W. R. 568). 

X. In a suit for partition the Court may make such order as it Costs in 
thinks just respecting costs up to the time of the hearing {h). fuLV°^ 

[k) See E. S. C. 1883, Ord. LXV. The general rule is that the entire costs of Costs, 
the action are borne by the parties in proportion to their shares [Cannon v. Johnson, 
11 Eq. 90 ; 40 L. J. Ch. 46 ; 19 "W. B. 175 ; 23 L. T. 583 ; Osborn v. Osborn, 6 Eq. 
338 ; 18 L. T. 679 ; Miller v. Marriott, 7 Eq. 1 ; 17 W. E. 41 ; 19 L. T. 304 ; Simp- 
son V. Sitchie, 16 Eq. 103 ; Ball v. Kemp- Welch, 14 Ch. D. 512 ; 49 L. J. Ch. 528 ; 
43 li. T. 116, where a sale was directed ; Bowes v. Marquis of Bute, 27 W. R. 750, 
where there was a partition). But the Court has a discretion, and this rale may be 
departed from under special eiroumstances. See Wilkinson v. Joberns, 16 Eq. 14; 
Wilhinson v. Castle, 37 L. J. Ch. 467 ; 16 W. R. 501 ; Porter v. lopes, 7 Ch. D. 367. 
See also Morgan & Wurtzburg on Costs, p. 240 et seq. 



184 



PAKTITION ACT, 1868. 



31 & 32 Vict. 
,=. 40, a. 12. 

Jurisdiction 
of County 
Courts ia 
partition. 



28 & 29 Vict. 



[Sect. 11 is repealed by Statute Law Revision and Civil Procedure Act, 1881.] 

XII. In England the County Courts sliall have and exercise the like 
power and authority as the Court of Chancery in suits for partition 
(including the power and authority conferred by this Act) in any case 
where the property to which the suit relates does not exceed in value 
the sum of five hundred pounds, and the same shall be had and 
exercised in like manner and subject to the Hke provisions as the 
power and authority conferred by sect. 1 of the County Courts 
Act, 1865. 



39 & 40 Vict, 
c. 17. 



Short title. 



AppUoation 
of Act. 



Power to dis- 
pense with 
service of 
notice of 
decree or 
order in 

. cases. 



PARTITION ACT, 1876. 

39 & 40 VICT. Cap. 17. 

An Act to amend the Partition Act, 1868. 

[27th June, 1876.] 

I. This Act may be cited as the Partition Act, 1876, and shall be 
read as one with the Partition Act, 1868. 

II. This Act shall apply to actions pending at the time of the 
passing of this Act as well as to actions commenced after the passing 
thereof, and the term "action," includes a suit, and the term 
"judgment " includes decree or order. 

III. Where in an action for partition it appears to the Court that 
notice of the judgment on the hearing of the cause cannot be served 
on all the persons on whom that notice is by the Partition Act, 1868, 
required to be served, or cannot be so served without expense dispro- 
portionate to the value of the property to which the action relates, the 
Court may, if it thinks fit, on the request of any of the parties 
interested in the property, ' and notwithstanding the dissent or 
disability of any others of them, by order, dispense with that service 
on any person or class of persons specified in the order, and, instead 
thereof, may direct advertisements to be published at such times and 
in such manner as the Coujt shall think fit, calling upon all persons 
claiming to be interested in such property who have not been so served 
to come in and establish their respective claims in respect thereof 
before the Judge in Chambers within a time to be thereby limited. 
After the expiration of the time so limited all persons who shall not 
have so come in and established such claims, whether they are within 
or without the jurisdiction of the Court (including persons under any 
disability), shall be bound by the proceedings in the action as if on 
the day of the date of the order dispensing with service they had been 
served with notice of the judgment, service whereof is dispensed with ; 



PARTITION ACT, 1876. Ig5 

and thereupon tlie powers of the Court under the Trustee Act, 1850, 39 & 40 Vict, 
shall extend to their interests in the property to which the action "• ^^' °' ^' 
relates as if they had been parties to the action ; and the Court may 
thereupon, if it shall think fit, direct a sale of the property and give 
all necessary or proper consequential directions («). 

(a) For form of order giving leave to apply at Chambers for an order dispensing Dispensing 
with service, see Se Hardiman, 16 Ch. D. 360. An order dispensing with service with service 
can only be made by the Judge himself. Where two of the persons interested were of judgment, 
out of the jurisdiction, and one of them had not been heard of for seven and the 
other for three years, service was dispensed with, and no advertisement was issued 
{Sarfon v. Barton, W. N. (1877), 23) ; but service of the judgment, and 
advertisements, should not both be dispensed with (Hacking v. TVhalley, W. N. 
(1882), 135). 

rV. Where an order is made under this Act dispensing with service Proceedings 
of notice on any person or class of persons, and property is sold by y^^re serrioe 
order of the Court, the following provisions shall have effect : — with. 

(1.) The proceeds, of sale shall be paid into Court to abide the 

further order of the Court. 
(2.) The Court shall, by order, fix a time, at the expiration of which 
the proceeds will be distributed, and may from time to time, 
by further order, extend that time. 
(3.) The Court shall direct such notices to be given by advertise- 
ments or otherwise as it thinks best adapted for notifying 
to any persons on whom service is dispensed with, who may 
not have previously come in and established their claims, the 
fact of the sale, the time of the intended distribution, and 
the time within which a claim to participate in the proceeds 
must be made. 
(4.) If at the expiration of the time so fixed or extended the inte- 
rests of all the persons interested have been ascertained, the 
Court shall distribute the proceeds in accordance with the 
rights of those persons. 
(5.) If at the expiration of the time so fixed or extended the interests 
of all the persons interested have not been ascertained, and 
it appears to the Court that they cannot be ascertained, or 
cannot be ascertained without expense disproportionate to 
the value of the property or of the unascertained interests, 
the Court shall distribute the proceeds in such manner as 
appears to the Court to be most in accordance with the rights 
of the persons whose claims to participate in the proceeds 
have been established, whether all those persons are or are 
not before the Court, and with such reservations (if any) as 
to the Court may seem fit in favour of any other persons 
(whether ascertained or not) who may appear from the 
evidence before the Court to have any prima facie rights 
which ought to be so provided for, although such rights may 
not have been fully established, but to the exclusion of all 
other persons, and thereupon all such other persons shall by 
virtue of this Act be excluded from participation in those 



186 



PARTITION ACT, 1876. 



39&40 Vict. 
0. 17, 8. 4. 



Provision for 
ease of succes- 
sive sales in 
same action. 



Eeqnest by 
married 
woman, 
infant, or 
person under 
disability. 



Request for 
sale. 



Person of un- 
sound mind. 



Infant. 



proceeds on the distribution thereof, but notwithstanding 
the distribution any excluded person may reeoyer from any 
participating person any portion received by him of the share 
of the excluded person. 

V. Where in an action for partition two or more sales are made, if 
any person who has by virtue of this Act been excluded from partici- 
pation in. the proceeds of any of those sales establishes his claim to 
participate in the proceeds of a subsequent sale, the shares of the 
other persons interested in the proceeds of the subsequent sale shall 
abate to the extent (if any) to which they were increased by the non- 
participation of the excluded person in the proceeds of the previous 
sale, and shall to that extent be applied in or towards payment to that 
person of the share to which he would have been entitled in the pro- 
ceeds of the previous sale if his claim thereto had been established in 
due time. 

VI. In an action for partition a request for sale may be made or an 
undertaking to purchase given on the part of a married woman, 
infant, person of unsound mind, or person under any other disability, 
by the next friend, guardian, committee in lunacy (if so authorized by 
order in lunacy), or other person authorized to act on behalf of the 
person under such disability; but the Court shall not be bound to 
comply with any such request or undertaking on the part of an infant, 
unless it appear that the sale or purchase will be for his benefit {b). 

{b) The request for a sale made on behalf of a person under disability should be 
made by a person specially authorized to act on his behalf in the action ( Wallace v. 
Greenwood, 16 Ch. D. 362; Grange v. White, 18 Ch. D. 612; contra, CrooJees v. 
Whitworth, 10 Ch. D. 289). 

A person of unsound mind not so found may, by his next friend, be plaintiS in 
an action for sale [Watt -v. Leach, 26 W. R. 475). Where a lunatic is tenant in 
tail of an undivided share the committee maybe directed to request a sale (Re Fares, 
12 Ch. D. 333). 

The request for a sale may be made by the gnardian ad litem of an infant defen- 
dant (iJ»»i»^<o» V. Hartley, 14 Ch. D. 630). 



Prayer for 

partition 

unnecessary. 



VJLL. Por the purposes of the Partition Act, 1868, and of this Act, 
an action for partition shall include an action for sale and distribution 
of the proceeds, and in an action for partition it shall be sufficient to 
claim a sale and distribution of the proceeds, and it shall not be neces- 
sary to claim a partition. 



DEBTORS ACT, 1869. 



187 



DEBTOES ACT, 1869. 32 & 33 viot. 

c. 62. 
32 & 33 VICT. Cap. 62. 

An Act for the Abolition of Imprisonment for Debt, for the punish- 
ment of fraudulent Debtors, and for other purposes. 

[9tli August, 1869.] 
Be it enacted, &c. as follows : — 

Preliminary. 

I. This Act may be cited for all purposes as "The Debtors Act, Short title. 
1869." 

II. This Act shall not extend to Scotland or Ireland. Extent of 

III. This Act shall not come into operation until the day on which ^°^- 

the Bankruptcy Act, 1869, comes into operation, which day is herein- ment'and^" 
after referred to as the commencement of this Act, and words and construction 
expressions defined or explained in the Bankruptcy Act, 1869, shall °* •^°*- 
have the same meaning in this Act (a). 

(a) The Bankruptcy Act, 1869, came into operation on January Ist, 1870. See 
now Bankruptcy Act, 1883. 

PART I. 
Abolition of Imprisonment for Debt. 

TV. With the exceptions hereinafter mentioned, no person shall after No imprison 
the commencement of this Act be arrested or imprisoned (6) for making 
default in payment of a sum of money. 

There shall be excepted from the operation of the above enact- 
ment : — 

1. Default in payment of a penalty, or sum in the nature of a penalty, (1) Upon 
other than a penalty in respect of any contract (c) : paTanent^f 

2. Default inpayment of any sum recoverable summarily before a a penalty; 
justice or justices of the peace (d) : (2) Under 

3. Default by a trustee or person acting in a fiduciary capacity (e) ^ugtioes • 
and ordered to pay by a Court of equity (/) any sum in his posses- (3) By trustee; 
sion or under his control {g) : 

4. Default by an attorney or solicitor in payment of costs -when (4) By at- 
ordered to pay costs for misconduct as such, or in payment of a °™®y ' 
sum of money when ordered to pay the same in his character of an 

officer of the Court making the order (A) : 

5. Default in payment for the benefit of creditors of any portion of (^) "^ P^y- 
a salary or other income in respect of the payment of which any income to 
Court having jurisdiction in bankruptcy is authorized to make an creditors. 

^^^^^ '• (6i In a - 

6. Default in payment of sums in respect of the payment of which Jagnt mite 

orders are in this Act authorized (?) to be made : this Act. 

Provided, first, that no person shall be imprisoned in any case excepted ^° in^rison- 
from the operation of this section for a longer period than one year (J) ; a year. 



ment for debt 
except — 



188 



DEBTORS ACT, 1869. 



32 & 33 Vict, 
e. 62, 8. i. 



Imprisonment 
for contempt. 

Special con- 
tempt by- 
arresting 
officers of 
Court. 

By violent 
language. 



tempt. 



Extent of 
solicitor's 
privilege. 



Party in con- 
tempt may 
take defensive 
proceedings. 



Waiver of 
contempt. 

Release of 
person im- 
prisoned for 
contempt 
of Court. 

Privilege of 
bankrupt. 



Penalty. 



Sum recover- 
able before 
justices. 



and, secondly, .that notMng in. this section shall alter the effect of any 
judgment or order of any Court for payment of money except as regards 
the arrest and imprisonment of the person making default in paying 
such money {k). 

(4) The power of the Court to imprison for contempt of Court in oases not pro- 
vided for by the Act remains unaffected [Sarvey v. Sail, 11 Eq. 31 ; and see Ord. 
XLII. r. 7, infra). 

Offloers and attendants upon Hie Court, suitors, and witnesses, have privilege, eundo, 
redeundo, et morando, for their necessary attendance, but not otherwise, and where any 
of them are arrested at such times of necessary attendance, it is a contempt of Court. And 
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, is liable to be committed upon motion, on notice to the person so offending (Cons. 
Ord. XLII. rr. 1, 2). 

See Frice v. SuUhison, 9 Eq. 534 ; 18 W. E. 204 ; Be Clements, 46 L. J. Ch. 375, 
as to abusive words against officers of the Court. As to publication by a newspaper 
of evidence in a cause with comments, before the hearing, being a contempt of Court, 
Bee Tichborne v. Mostyn, 7 Eq. 56, n. ; Saw v. Mley, Ibid. 42 ; General Exchange Bank 
V. Horner, "W. N. (1868), 259 ; but see Re London Flour Co., 16 W. R. 474. Publi- 
cation without comment of a pleading, affidavit, petition, or other ex parte statement 
before trial is a contempt {Re Cheltenham Wagon Co., 8 Eq. 580 ; Coleman v. West 
Hartlepool Co., 8 W. R. 734 ; 2 L. T. 766; Tichborne v. Mostyn ;Robsm v. Dodds, 17 
W. R. 782). See also Sowden v. Russell, W. N. (1877), 55 ; Buenos Ayres Gas Co. v. 
Wilde, 29 "W. R. 43 ; 42 L. T. 657 ; W. N. (1880), '95. 

The privilege of a solicitor as officer of the Court extends to him when proceeding 
to attend an appointment with a person for whom he is acting in a suit (Eyre v. 
Barrow, 6 W. R. 767) ; or on his way to attend a summons at judge's chambers [Re 
Jewitt, 33 Beav. 559) ; and see Attorney-General v. Leathersellers' Company, 7 Beav. 
157 ; Gibbs v. Fhillipson, 1 R. & M. 19 ; Flonwr v. Macdonough, 1 De Gr. & S. 232 ; 
Andrews v. Walton, 1 M. & G. 380, and the other oases cited in Seton, 1590. See, 
however, Re Freston and Fie Dudley, cited in note (A) post, p. 189. 

A defendant in contempt may take any step necessary for his defence {Fry v. 
Ernest, 12 W. R. 97). Thus, he may be heard to show that proceedings subsequent 
to the order placing him in contempt were irregiilar {Morrison v. Morrison, 4 Hare, 
590 ; King v. Bryant, 3 M. & Cr. 191 ; and see Wilson v. Bates, id. 197; Hawkins 
V. Hall, 1 Beav. 73 ; 4 M. & Cr. 280). Or he may apply for taxation of a bill of 
costs {Newton v. Rickeits, 11 Beav. 67 ; and see Everett v. Frythergch, 12 Sim. 363 ; 
Daniell, 904. 

A party in contempt should generally apply by petition {Nicholson v. Squire, 16 
Ves. 259) ; but a plaintiff in contempt was, in Futvoye v. Kennard, 2 Giffi. 110, 
held entitled to be heard on a motion to discharge an'order made against him at 
chambers. 

A contempt may be waived, e.g., if the defendant is in contempt for want of 
sufficient answer, the plaintiff, by taking a step in the cause, waives the contempt, 
and cannot claim the costs of it {Roberts v. Albert Bridge Company, 8 Ch. 753). 

The Act makes this difference as to imprisonment for contempt, that a person im- 
prisoned for contempt of Court, cannot, after clearing his contempt, be kept in prisou 
till he pays costs of the contempt {Jackson v. Mawby, X Ch. D. 86 ; 24 W. R. 92 ; 
45 L. J. Ch. 53 ; Mickelthu-aitey . Fletcher, 11 W. R. 793) ; seous, where the contempt 
is not cleared {S. v. L., W. N. (1876), 220 ; S. C. nom. Re M:, 46 L. J. Ch. 24). See 
also Baker v. Baker, W. N. (1876), 256. 

A person who is excepted from the operation of the section, and therefore liable 
to be attached, will, nevertheless, if he become a bankrupt, be protected pending 
the bankruptcy proceedings {Cob/mm v. Ballon, 10 Ch. 655 ; 23 W. R. 865 ; Re Neil, 
W. N. (1882), 46 ; Phosphate Sewage Co. v. Hartmont, 25 W. R. 743) ; seeus, where 
the attachment is not for non-payment of a sum of money, but for punishment {Re 
Deere, 10 Ch. 658), or the bankruptcy takes place after the attachment {Earl of Lewes 
v. Burnett, 6 Ch. D. 252 ; 26 "W. R. 101). A compounding debtor is not protected 
{Paskler v. Vincent, 8 Ch. D. 825 ; 27 "W. R. 2). 

Where two trustees were ordered in an action to pay money into Court, and on 
their failing to do so one of them was served with a notice of motion for attachment, 
but before the motion came on he filed a petition in bankruptcy, Cave, J. refused to 
stay further proceedings in the action {Re Mackintosh, W. N. (1884), 114). 

(c) When the Act allows imprisonment for default in payment of a penalty, it 
means a penalty for non-observance of a positive law. See Middleton v. Chichester, 
6 Ch. 152, 155. See also Marris v. Ingram, 13 Ch. D. 342. 

{d) See R. v. Pratt, L. R. 6 Q. B. 176 ; 18 W. R. 626 ; S. C. nom. Ex parte Cok, 
21 L. T. 750. 



DEBTORS ACT, 1869. jgg 

(e) A "person acting in a, fiduciary capacity," means a person -who stands in a 32 & 33 Vict, 
fiduciary relation towards any other person who maybe entitled to call upon him to 0. 62 s. 4. 

pay a sum of money, whether such person is or is not the plaintiff, or one of the — '■ — — ^- 

plaintifis, in the action in which the order for payment has been made {Marris v. Fiduciary 
Ingram, 13 Ch. D. 338) ; and see Sutchinson v. Martmont, W. N. (1877), 29. A capacity, 
director ordered to pay the full value of shares received from promoters, on which 
no money had been paid, was held not to be in a fiduciary capacity in relation 
thereto [Metcalfe's Case, 13 Ch. D. 815; 28 W. K 435; 42 L. T. 178; and see 
Phosphate Sewage Co. v. Martmont, 25 W. R. 743; W. N. (1877), 167; Sx parte 
Sooson, 8 Ch. 231 ; 21 "W". R. 162 ; 28 L. T. 4). 

(/) These wordsmnst now be read " High Court of Justice " {Marris v. Ingram). " Court of 

(j) A trustee who has not made away with trust funds, but has only neglected to Equity." 
get them in, is not a defaulting trustee within the section, for the money has not Defaultins' 
been in his possession or under his control {Fergmon v. Ferguson, 10 Ch. 661) ; but a *rT,g(-ee 
trustee who has had the money in his possession or control is liable to imprisonment, 
though he has lost the money, and is not therefore, strictly speaking, contumacious in Possession 
not paying (Middleton v. Chichester, 6 Ch. 152 ; and see Bigby v. Turner, W. N. (1873), and control. 
60 ; 21 W. R. 471). An attachment, however, issued against a trustee on an order 
directing the payment of a sum composed of principal and interest not distinguished 
was discharged, inasmuch as the interest might not, at any time, have been in his 
possession or under his control [Middleton v. Chichester ; and see Be Sincks, W. N. 
(1876), 188; 24 W. R. 931). 

A trustee may be attached though the trust funds were only under his control Joint control, 
jointly vrith another trustee [Evarts v. Bear, 10 Ch. 76) ; and see He A. and £., 
"W. N. (1877), 207. 

The amount to be paid must be specified in the order for payment [Me Spicer, Amount must 
W. N. (1881), 85). he specified. 

(A) Eor an order for attachment against a solicitor who had failed to pay costs . j.i t 
which he had been ordered to pay for misconduct, see Tilneu v. Stansfeld, 28 "W. R. ■'"tachment 
582 ; W. N. (1880), 77. °^ solicitor. 

A solicitor may be attached for defatdt in payment of a balance found due from 
him upon taxation of his bill of costs under the common order ( Re Rush, 9 Eq. 147 ; 

18 "W. R. 331 ; Re White, 19 "W. R. 39 ; 23 L. T. 387 ; and see Ee ¥■ , Ir. R., 

8 Eq. 355). But he cannot be attached for non-payment of costs incurred simply 
as an unsuccessful litigant [Re Hope, 7 Ch. £23 ; overruling Re Barfield and Rush, 19 
W. R. 466 ; 24 L. T. 248) ; seeus, where he is ordered to pay the costs of an action 
brought by him without authority [Jenkins v. Fereday, Ij. R. 7 C. P. 358). 

The right to an attachment may be lost by making terms with the solicitor 
[Sarmy v. Sail, 16 Eq. 324). 

A solicitor cannot claim privilege when arrested under this sub-section [Re Freston, 
11 Q. B. D. 545 ; 31 W. R. 804 ; 49 L. T. 290 ; Re Dudley, 12 Q. B. D. 44). 

The words " sum of money " in this sub-section include stock [Dighy v. Turner, " gum of 
21 "W. R. 471 ; W. N. (1873), 65). money." 

(i) See sect. 5 of the Act. 

[J ) As to an action by the debtor for detaining him beyond the year, see Greaves Length of 
T. Keene, 4 Ex. D. 73 ; 27 W. R. 416 ; 40 L. T. 216. No order is necessary for imprisou- 
the discharge of the prisoner where the writ is in the ordinary form [Re Edwards, ment. 
21 Oh D. 230 ; 30 W. R. 656) ; see also Moore v. Rose, L. R. 4 Q. B. 486 ; Nalty v. 
Aylett, "W. N. (1874), 182 ; 43 L. J. Ch. 721 ; 22 W. R. 857. 

(A) The Debtors Act, 1878, 41 & 42 Vict. c. 54, s. 1, provides as follows : — " In Debtors Act, 
any case coming within the exceptions numbered 3 and 4 in the fourth section of 1878. 
the Debtors Act, 1869, and in the fifth section of the Debtors Act (Ireland), 1872, 
respectively, or within either of those exceptions, any Court or judge, making the 
order for payment, or having jurisdiction in the action or proceeding in which the 
order for payment is made, may inquire into the case, and (subject to the provisoes 
contained in the said sections respectively) may grant or refuse, either absolutely 
or upon terms, any application for a writ of attachment, or other process or order 
of arrest or imprisonment, and any application to stay the operation of any such 
writ, process, or order, or for discharge from arrest or imprisonment thereunder." 

As to the history and object of this enactment, see Marris v. Ingram, 13 Ch. D. 

The Debtors Act, 1869, is vindictive in this sense, that it is intended for the Debtorg Act, 
punishment of fraudulent or dishonest debtors [Marris v. Ingram ; Doodson v. Turner, 1869, how far 
W N. (1883), 53 ; 62 L. J. Ch. 685 ; 48 L. T. 760) ; see, however. Re Freston, 11 vindictive. 
Q B D 545 ; 31 W. R. 804 ; 49 L. T. 290 ; Barrett v. Hammond, 10 Ch. D. 285 ; 
Solr'oyd^^. Garnett, 20 Ch. D. 532 ; 30 W. R. 604. 

By G. 0., January 7th, 1870, rules were made under the Debtors Act, 1869 ; see Gr. O. Jan. 7, 

5 Ch. pp. xxxiii xxxvi. Though not expressly repealed, these rules appear to be 1870. 

now obsolete, except those under sect. 5 of the Act, and it has accordingly not been 
thought necessary to reproduce them here. 



190 



DEBTORS ACT, 1869. 



32 & 33 Vict. " [The iurisdiction and powers of the High Court under sect. 5 of the Act are noi 
V. 62, s. 5. vested in the judge and registrars in banfauptoy ; see Bankruptcy Act, 1883, s. 103 
Bankruptcy Eules, 1883, r. 265 ; G. O. 1st January, 1884.] 



Ord. 7 Jan. 
1870. 

Rule 19. 
General prac- 
tice under 
Act. 

Rule 20. 
Solicitors' 
fees. 

Rule 21. 
To be read 
■with General 
Orders. 

Power under 
certain cir- 
cumstances 
to arrest 
defendant 
about to quit 
England. 



The Order made under this Act, dated 7th January, 1870 (see 5 Ch. p. xxxvi 
et seq.), contains the following provisions : — 

19. The general practice of the Court shall, in all eases not provided for by " th 
Debtors Act, 1869," or these rules, and so far as the same is applicable, and not inconsis- 
tent with the said Act or these rules, apply to all proceedings under the ith and 6th section 
of the said Act, 

20. The charges to be allowed to solicitors for duties performed in respect of such pro' 
ceedings as last aforesaid, and the fees of Court in respect of the same proceedings, shall bt 
the same as those allowable and payable in respect of other proceedings of the same naturi 
in the cause or matters in which such proceedings respectively are taken. 

21. This order shall be read and construed as part of the General Consolidated Order, 
of the Court, and the interpretation clause in the same Consolidated General Orders con- 
tained shallapply to the rules of this order. 

VI. Aiter the commencement of this Act a person shall not be 
arrested upon mesne process in any action. 

Where the plaintiff in any action in any of her Majesty's Superior 
Courts of la'w at "Westminister, in which, if brought before the com- 
mencement of this Act, the defendant would have been liable to 
arrest, proves at any time before final judgment by evidence on oath, 
to the satisfaction of a judge of one of those Courts, that the plaintifi 
has good cause of action against the defendant to the amount oi 
fifty pounds or upwards, and that there is probable cause for believing 
that the defendant is about to quit England unless he be apprehended, 
and that the absence of the defendant from England will materially 
prejudice the plaintiff in the prosecution of his action, such judge 
may in the prescribed manner order such defendant to be arrested 
and imprisoned for a period not exceeding six months, unless and 
until he has sooner given the prescribed security, not exceeding the 
amount claimed in the action, that he will not go out of England 
without the leave of the Court. 

Where the action is for a penalty or sum in the nature of a penalty, 
other than a penalty in respect of any contract, it shaU not be 
necessary to prove that the absence of the defendant from England 
win materially prejudice the plaintiff in the prosecution of his action, 
and the security given (instead of being that the defendant wiU not 
go out of England) shall be to the effect that any sum recovered 
against the defendant in the action shaU be paid, "or that the defen- 
dant shall be rendered to prison {I). 



(2) See as to 
infra. 



proceedings under this section, Ord. LZIX., R, S. C. 1883, 



[Sect. 7 is repealed by Statute Law Revision Act, 1883.] 



Sequestration 
against pro- 
perty. 



Ym. Sequestration against the property of a debtor may, after 
the commencement of this Act, be issued by any Court of equity in 
the same manner as if such debtor had been actually arrested (ot). 

(m) See Sykea v. Dyson, 9 Eq. 228. 



DEBTORS ACT, 1869. 191 

IX. Nothing in this part of this Act shall in any way affect any 32 & 33 Vict. 
right or power, under the Bankruptcy Act, 1869, to arrest or imprison "• ^^' ^" °" 
any person. Saving for 

X. In this part of this Act the term "prescribed" means as Act, 1869?'' 
foUows :— Definition of 

As respects the Superior Courts of common law, prescribed by "prescribed." 

general rules to be made in pursuance of the Common Law 

Procedure Act, 1852 ; 
As respects the Superior Courts of equity, prescribed by general rules 

and orders to be made in pursuance of the Act of the session of 

the fifteenth and sixteenth years of the reign of her present 

Majesty, chapter eighty ; 
As respects the County Courts, prescribed by general rules to be 

jnade under the County Court Act, 1856 ; and 
As respects any other Court, prescribed by the rules to be made, 

with the approval 'of the Lord Chancellor, by the persons having 

power to make rules in relation to the practice of such Court ; or 

if there be no such persons, by the judge of such Court ; 
And general rules and orders may respectively be made by such 

authorities as aforesaid, for the purpose of carrying into effect 

this part of this Act. 

Pakt II. 

Punishment of Fraudulent Debtors. 

[By sect. 11, any bankrupt, or person wbose affairs are in liquidation, is to be 
gfuiHy of misdemeanor, and to be liable to imprisonment, not exceeding two years, for 
certain specified acts of concealment and fraud. See He Stanlake, 10 Cli. D. 774.] 

[Sects. 12 and 13 enact a penalty for absconding with property and for fraudu- 
lently obtaining credit.] 

[By sect. 14, a false claim in any bankruptcy or liquidation is to be pimisbable as 
a misdemeanor.] 

[By sect. 15, an arranging or compounding debtor is to remain liable for fraudu- 
lent debts. See Ex parte Semming, 13 Ch. D. 163.] 

[By sects. 16-20, the mode of prosecution under the preceding sections ia pointed 
out.] 

[Sects. 21 and 22 are rq)ealed by Bankruptcy Act, 1883.] 

[By sect. 23 punishments under this Act are to be cumulative.] 

Past III. 
Warrants of Attorney, Cognovits, and Orders for Judgment. 

[Sects. 24-28 relate to the manner of executing warrants of attorney and cog- 
novits, and to the filing of the same.] 

[Sect. 29 relates to foreign attachment.] 



192 MARRIED WOMEN'S PROPERTY ACT, 1882. 



45 & 46 Vict. MAEEIED WOMEN'S PEOPERTT ACT, 1882. 

0. 75. 



45 & 46 VICT. Cap. 75. 

An Act to consolidate and amend the Acts relating to the Property 
of Married Women. [18tli August, 1882.] 

Wheeeas it is expedient to consolidate and amend the Act of the 
thirty -third and thirty-fourth Victoria, chapter ninety-three, intituled 
"The Married Women's Property Act, 1870," and the Act of the 
thirty-seventh and thirty-eighth Victoria, chapter fifty, intituled " An 
Act to amend the Married Women's Property Act (1870) " : 
Be it enacted, &c. as follows : — 
Married 1, — (1.) A married woman shall, in accordance with the provisions 

te capable "^ *^^ -'^<'*j ^^ capable of acquiring, holding, and disposing hy mil 
of holding or otherwise, of any real or personal property as her separate pro- 
of contraotoig P^^Jj '^'°- ^^^ same manner as if she were a feme sole, without the 
as a feme intervention of any trustee. 

(2.) A married woman shall he capable of entering into and ren- 
dering herself liable in respect of and to the extent of her separate 
property on any contract, and of suing and being sued, either in 
contract or in tort, or otherwise, in all respects as if she were a feme 
sole, and her husband need not be joined with her as plaintiff or 
defendant, or be made a party to any action or other legal proceeding 
brought by or taken against her (a) ; and any damages or costs re- 
covered by her in any such action or proceeding shall be her separate 
property ; and any damages or costs recovered against her in any such 
action or proceeding shall be payable out of her separate property, 
and not otherwise. 

(3.) Every contract entered into by a married woman shall be 
deemed to be a contract entered into by her with respect to and to~ 
bind her separate property, unless the contrary be shown. 

(4.) Every contract entered into by a married woman with respect 
to and to bind her separate property shall bind not only the separate 
property which she is possessed of or entitled to at the date of the 
contract, but also all separate property which she may thereafter 
acquire (J). 

(5.) Every married woman carrying on a trade separately from her 
husband shall, in respect of her separate property, be subject to the 
bankruptcy laws in the same way as if she were a feme sole. 

Actions, &o., (a) The husband of a married woman need not be joined as co-petitioner with 
byaudagainst his wife in a petition presented under the statutory jurisdiction of the Court {Me 
married Outwin, 31 W. R. 374 ; 48 L. T. 410). A married woman may sue in her own 

women. name for a tort committed before the Act {James v. Barraud, 31 W. R. 786 ■ 

Severance v. Civil Service Association, 48 L. T. 485 ; JFeldon v. Winslow, 13 Q. B. D. 

784) ; see, however, Weldon v. Mviere, W. N. (1884), 154. See also TVeUon v Neal 

W. N. (1884), 153 (Statute of Limitations). 

Judgment in default, or under Ord. XIV., may be signed against a married 

woman in respect of ber separate estate, but execution should issue only against 

.%uch separate estate as she is not restrained from anticipating unless such restraint 



MAEJRIED "WOMEN'S PROPEETT ACT, 1882. 193 

^sts under a settlement by herself of her own property {Bursill v. Tanner, 13 45 & 46 Vict. 
Q. B. D. 691 ; Pei'ks v. Mylrea, W. N. (1884), 64) ; see, however, Moore v. Mulligan, o. 75, s. 1. 

W. N. (1884), 34). So judgment may now be ordered against a married woman, 

third party, as a feme sole, declaring her separate property chargeable in respect 
of a liability created before the Act {Glpueealershire Banking Co. v. Phillipps, 12 
Q. B. D. 533). Security for costs is not now required from a married woman suing 
alone .{TAjW/aHv. Wilson, 8 P. D. 18). 

(i) This sub-section does not operate retrospectively so as to include contracts 
entered into by a married woman before the Act {Conolan v. Letjland, 27 Oh. D. 

2. Every -woman who marries after the commencement of this Act Property of 
shall be entitled to have and to hold as her separate property and to ^ajried'after 
dispose of in manner aforesaid all real and personal property which the Act to 
shall belong to her at the time of marriage, or shall be acquired by her as a feme 
or devolve upon her after marriage, including any wages, earnings, sole. 
money, and property gained or acquired by her in any employment, 

trade, or occupation, in which she is engaged, or which she carries on 
separately from her £.usband, or by the exercise of any literary, 
artistic, or scientific skill. 

3. Any money or other estate of the wife lent or entrusted by her Loans by 
to her husband for the purpose of any trade or business carried on by j^ug^^nd 
him, or otherwise, shall be treated as assets of her husband's estate in 

case of his bankruptcy, under reservation of the wife's claim to a divi- 
dend as a creditor for the amount or value of such money or other 
estate after, but not before, all claims of the other creditors of the 
husband for valuable consideration in money or money's worth have 
been satisfied. 

4. The execution of a general power by will by a married woman Execution of 
shall have the effect of making the property appelated liable for her &^^®''^ 
debts and other liabilities in the same manner as her separate estate 

is made liable under this Act. 

5. Every woman married before the commencement of this Act shall Property 

be entitled to have and to hold and to dispose of in manner aforesaid f^'^'T t'b^**^' 
as her separate property aU real and personal property, her title to a woman 
which, whether vested or contingent, and whether in possession, re- ^g'^^g^''^*"™ 
version, or remainder, shall accrue after the commencement of this to be held 
Act, including any wages, earnings, money, and property so gained or ^^ ^^'^ ^^ * 
acquired by her as aforesaid (c). 

(c) Property, to which a woman married before the Act was entitled in reversion 
at the commencement of the Act, but which, since the commencement of the Act, 
has fallen into possession, is within this section {Saynton v. Collins, 27 Oh. D. 
604). 

A marriage settlement made in 1862 contained an agreement for settlement of 
after-acquired property above a specified amount, except interests settled and 
limited to the wife's separate use. The wife, after the Act, became absolutely 
entitled to a bequest above the specified amount, and not to her separate use. It 
was held that sect. 19 of the Act exempted the settlement from the 5th and other 
sections, and that the bequest must be dealt with as if the Act had not been passed 
(^e Stonor, 24 Oh. D. 195 ; 52 li. J. Oh. 776 ; 48 L. T. 963). See also Me Queade, 
W. N. (1884), 225, where the married woman was an infant when the settlement 
was executed, and was therefore not bound by it. 

As to the effect of a gift to liusband and wife and a third person, see Re March, 
27 Oh. D. 166, reversing S. 0. below, 24 Oh. D. 222. 



194 



MARRIED WOMEN'S PROPERTY ACT, 1882. 



45 & 46 Viot. 
0. 78, B. 6. 

Ab to Btook, 
&o. to ■whidi 
a married 
■woman is 
entitled. 



As to stock, 
&o. to he 
transferred, 
&c. to a 
married 
woman. 



6. All deposits in any post office or other savings bant, or in any 
other bank, all annuities granted by the Commissioners for the Ee- 
duction of the National Debt or by any other person, and aU sums 
forming part of the public stocks or funds, or of any other stocks or 
funds transferable in the books of the Governor and Company of the 
Bank of England, or of any other bank, which at the commencement 
of this Act are standing in the sole name of a married vroman, and all 
shares, stock, debentures, debenture stock, or other interests of or in 
any corporation, company, or public body, municipal, commercial, or 
otherwise, or of or in any industrial, provident, friendly, benefit, 
building, or loan society, which at the commencement of this Act are 
standing in her name, shall be deemed, unless and until the contrary 
be shown, to be the separate property of such married woman ; and 
the fact that any such deposit, annuity, sum forming part of the public 
stocks or funds, or of any other stocks or funds transferable in the 
books of the Governor and Company of the Bank of England or of 
any other bank, share, stock, debenture, debenture stock, or other 
interest as aforesaid, is standing in the sole name of a married 
woman, shall be sufficient prima facie evidence that she is beneficially 
entitled thereto for her separate use, so as to authorise and empower 
her to receive or transfer the same, and to receive the dividends, in- 
terest, and profits ' thereof, without the concurrence of her husband, 
and to indemnify the Postmaster-General, the Commissioners for the 
Eeduction of the National Debt, the Governor and Company of the 
Bank of England, the Governor and Company of the Bank of Ireland, 
and all directors, managers, and trustees of every such bank, corpora- 
tion, company, pubHc body, or society as aforesaid, in respect thereof. 

7. All sums forming part of the public stocks or funds, or of any 
other stocks or funds transferable in the books of the Bank of Eng- 
land or of any other bank, and all such deposits and annuities respec- 
tively as are mentioned in the last preceding section, and all shares, 
stock, debentures, debenture stock, and other interests of or in any 
such corporation, company, public body, or society as aforesaid, which 
after the commencement of this Act shall be allotted to or placed, 
registered, or transferred in or into or made to stand in the sole name 
of any married woman shall be deemed, unless and until the contrary 
be shown, to be her separate property, in respect of which so far as 
any liability may be incident thereto her separate estate shall alone 
be liable, whether the same shall be so expressed in the document 
whereby her title to the same is created or certified, or in the books 
or register wherein her title is entered or recorded, or not. 

Provided always, that nothing in this Act shall require or authorise 
any corporation or joint stock company to admit any married woman 
to be a holder of any shares or stock therein to which any liabOity 
may be iacident, contrary to the provisions of any Act of Parliament, 
charter, byelaw, articles of association, or deed of settlement regulating 
such corporation or company. 



MAERIBD WOMEN'S PBOPEETY ACT, 1882, jgg 

8. All the provisions hereinbefore contained as to deposits in any 45 & 46 Viot. 
post-office or other savings bank, or in any other bank, annuities "■ '^^' °- ^- 
granted by the Commissioners for the Eeduction of the National Debt Investments 
or by any other person, sums forming part of the public stocks or ^ail^of 
funds, or of any other stocks or funds transferable in the books of the married 
Bank of England or of any other bank, shares, stock, debentures, ^tWa? ^""^ 
debenture stock, or other interests of or in any such corporation, com- 
pany, public body, or society as aforesaid respectively, which at the 
commencement of this Act shall be standing in the sole name of a 

married woman, or which, after that time, shall be allotted to, or 
placed, registered, or transferred to or into, or made to stand in, the 
sole name of a man-ied woman, shall respectively extend and apply, so 
far as relates to the estate, right, title, or interest of the married 
woman, to any of the particulars aforesaid which, at the commence^ 
ment of this Act, or p,t any time afterwards, shall be standing in, or 
shall be allotted to, placed, registered, or transferred to or into, or 
made to stand in, the name of any married woman jointly with any 
persons or person other than her husband. 

9. It shall not be necessary for the husband of any married woman, As to stock, 
in respect of her interest, to join in the transfer of any such annuity or &<=. standing 
deposit as aforesaid, or any sum forming part of the pubhc stocks or JJamel of a 
funds, or of any other stocks or funds transferable as aforesaid, or any ™a™ed 
share, stock, debenture, debenture stock, or other benefit, right, claim, others, 

or other interest of or in any such corporation, company, public body, 
or society as aforesaid, which is now or shall at any time hereafter be 
standing in the sole name of any married woman, or in the joint 
names of such married woman and any other person or persons not 
being her husband. 

10. If any investment in any such deposit or annuity as aforesaid. Fraudulent 
or in any of the public stocks or funds, or in any other stocks or funds "^.^estmenta 
transferable as aforesaid, or in any share, stock, debenture, or deben- of husband, 
ture stock of any corporation, company, or public body, municipal, 
commercial, or otherwise, or in any share, debenture, benefit, right, or 

claim whatsoever in, to, or upon the funds of any industrial, provident, 
friendly, benefit, buHding, or loan society, shall have been made by a 
married woman by means of moneys of her husband, without his 
consent, the Court may, upon an application under section seventeen 
of this Act, order such investment, and the dividends thereof, or • any 
part thereof, to be transferred and paid respectively to the husband ; 
and nothing in this Act contained shall give validity as against creditors 
of the husband to any gift, by a husband to his wife, of any property, 
which, after such gift, shall continue to be in the order and disposi- 
tion or reputed ownership of the husband, or to any deposit or other 
investment of moneys of the husband made by or in the name of his 
wife in fraud of his creditors ; T)ut any moneys so deposited or invested 
may be followed as if this Act had not passed. 

o2 



196 



MARBIED "WOMEN'S PBOPERTY ACT, 1882. 



45 & 46 Vict, 
u. 75, s. 11. 

Moneys 
payable 
under policy 
of assurance 
not to form 
part of estate 
of the 
insured. 



13 & 14 Vict, 
.i. 60. 



11. A married woman may by virtue of tlie power of maMng oon- 
tracts hereinbefore contained effect a policy upon her own life or the 
life of her husband for her separate use ; and the same and all benefit 
thereof shall enure accordingly. 

A policy of assurance effected by any man on his own life, and 
expressed to be for the benefit of his wife, or of his children, or of his 
wife and children, or any of them, or by any woman on -her own life, 
and expressed to be for the benefit of her husband, or of her children, 
or of her husband and children, or any of them, shall create a trust in 
favour of the objects therein named, and the moneys payable under 
any such policy shall not, so long as any object of the trust remains 
unperformed, form part of the estate of the insured, or be subject to 
his or her debts : Provided, that if it shall be proved that the policy 
was effected and the premiums paid with intent to defraud the creditors 
of the insured, they shall be entitled to receive, out of the moneys 
payable under the policy, a sum eqasH to the premiums so paid. The 
insured may by the policy, or by any memorandum under his or her 
hand, appoint a trustee or trustees of the moneys payable under the 
policy, and from time to time appoint a new trustee or new trustees 
thereof, and may make provision for the appointment of a new trustee 
or new trustees thereof, and for the investment of the moneys payable 
under any such policy. In default of any such appointment of a 
trustee, such policy, immediately on its being effected, shall vest in the 
insured and his or her legal personal representatives, in trust for the 
purposes aforesaid. If, at the time of the death of the insured, or at 
any time afterwards, there shall be no trustee, or it shall be expedient 
to appoint a new trustee or new trustees, a trustee or trustees or a new 
tKustee or new trustees may be appointed by any Court having juris- 
diction under the provisions of the Trustee Act, 1850, or the Acts 
amending and extending the same. The receipt of a trustee or 
trustees duly appoiated, or, in default of any such appointment, or in 
default of notice to the insurance office, the receipt of the legal per- 
sonal representative of the insured shall be a discharge to the office 
for the sum secured by the policy, or for the value thereof, in whole or 
in part (^d). 

{d) Tor cases decided under the corresponding section (sect. 10) of the Act of 
1870 (now repealed, see sect. 22, post), see Se Mellor, 6 Ch. D. 127 ; 7 Ch. D. 200 ; 
Be Adam, 23 Ch. D. 626, -where Re Mellor was not followed. As to the title of a 
petition for the appointment of trustees of the policy, see Re Soutar, W. N 
(l884), 61. 



Semedies 
of married 
woman for 
protection 
and security 
of separate 
property. 



12. Every woman; whether married before or after this Act, shall 
have in her own name against aU persons whomsoever, including her 
husband, the same civil remedies, and also (subject, as regards her 
husband, to the proviso hereinafter contained) the same remedies and 
redress by way of criminal proceedings, for the protection and security 
of her own separate property, as if such property belonged to her as 
a feme sole, but, except as aforesaid, no husband or wife shall be 



MARRIED "WOMEN'S PROPERTY ACT, 1882. 197 

entitled to sue the other for a tort. ta. any indictment or other pro- 45 & 46 Viot. 
ceeding under this section it shall he sufficient to allege such property "' ^^' "• •'^" 
to be her property ; and in any proceeding under this section a hushand 
or wife shall be competent to giro evidence against each other, any 
statute or rule of law to the contrary notwithstanding : Provided always, 
that no criminal proceeding shall be taken by any wife against her 
husband by virtue of this Act while they are living together, as to or 
concerning any property claimed by her, nor while they are living 
apart, as to or concerning any act done by the husband while they 
were living together, concerning property claimed by the wife, unless 
such property shall have been wrongfully taken by the husband when 
leaving or deserting, or about to leave or desert, his wife (e). 

{«) As to evidence in criminal prooeedings, see Married Women's Property Act, 
1884. 

13. A woman after her marriage shall continue to be liable in Wife's ante- 
respect and to the extent of her separate property for all debts con- and Habilities 
tracted, and aU contracts entered into or wrongs committed by her 

before her marriage, including any sums for which she may be liable 
as a contributory, either before or after she has been placed on the 
list of contributories, under and by virtue of the Acts relating to 
joint stock companies ; and she may be sued for any such debt and 
for any liability in damages or otherwise under any such contract, or 
in respect of any such wrong ; and all sums recovered against her in 
respect thereof, or for any costs relating thereto, shall be payable out 
of her separate property ; and, as between her and her husband, un- 
less there be any contract between them to the contrary, her separate 
property shall be deemed to be primarily liable for all such debts, 
contracts, or wrongs, and for aU damages or costs recovered in respect 
thereof : Provided always, that nothing in this Act shall operate to 
increase or diminish the liability of any woman married before the 
commencement of this Act for any such debt, contract, or wrong, as 
aforesaid, except as to any separate property to which she may become 
entitled by virtue of this Act, and to which she would not have been 
entitled for her separate use under the Acts hereby repealed or other- 
wise, if this Act had not passed. 

14. A husband shall be liable for the debts of his wife contracted, Husband to 
and for aU contracts entered into and wrongs committed by her, before ^jg'^^^g.f ""^ 
marriage, including any liabilities to which she may be so subject debts con- 
under the Acts relating to joint stock companies as aforesaid, to the J^^rriageto™ 
extent of aU property whatsoever belonging to his wife which he shall a certain 
have acquired or become entitled to from or through his wife, after extent. 
deducting therefrom any payments made by him, and any sums for 

which judgment may have been bona fide recovered against him in 
any proceeding at law, in respect of any such debts, contracts, or 
wrongs for or in respect of which his wife was liable before her mar- 
riage as aforesaid; but he shall not be liable for the same any further 
or otherwise ; and any court in which a husband shall be sued foi? any 



198 



MARRIED WOMEN'S PROPERTY ACT, ,1882. 



45 & 46 Vict, 
0. 75, s. 14. 



Suits for 

antenuptial 

liabilities. 



Act of wife 
liable to 
criminal 
proceedings. 



such debt shall have power to direct any inquiry or proceedings whic 
it may think proper for the purpose of ascertaining the nature, amoun 
or value of such property : Provided always, that nothing in this A( 
contained shall operate to increase or diminish the liability of an 
husband married before the commencement of this Act for or in respec 
of any such debt or other liabihty of his wife as aforesaid. 

15. A husband and wife may be jointly sued in respect of an 
such debt or other liability (whether by contract or for any wrong 
contracted or incurred by the wife before marriage as aforesaid, i 
the plaintiff in the action shall seek to establish his claim, eithe 
wholly or in part, against both of them ; and if in any such action 
or in any action brought in respect of any such debt or liability agains 
the husband alone, it is not found that the husband is liable in respec 
of any property of the wife so acquired by him or to which he shal 
have become so entitled as aforesaid, he shall have judgment. for hii 
costs of defence, whatever may be the result of the action against thi 
wife if jointly sued with him ; and in any such action against husbanc 
and wife jointly, if it appears that the husband is liable for the debi 
or damages recovered, or any part thereof, the judgment to the extern 
of the amount for which the husband is liable shall be a joint judg- 
ment against the husband personally and against the wife as to hei 
separate property; and as to the residue, if any, of such debt and 
damages, the judgment shall be a separate judgment against the wife 
as to her separate property only. 

16. A wife doing any act with respect to any property of her hus- 
band, which, if done by the husband with respect to property of the 
wife, would make the husband liable to crimiaal proceedings by the 
wife under this Act, shall in like manner be liable to criminal proceed- 
ings by her husband (/). 

(/) See note to b. 12. 



Questions 
between 
husband and 
wife as to 
property to 
be decided in 
a summary 
way. 



17. In any question between husband and wife as to the title to or 
possession of property, either party, or any such bank, corporation, 
company, public body, or society as aforesaid in whose books any 
stocks, funds, or shares of either party are standing, may apply by 
summons or otherwise in a summary way to any judge of the High 
Court of -Justice in England or in Ireland, according as such property 
is in England or Ireland, or (at the option of the applicant irrespectively 
of the value of the property in dispute) in England to the judge of the 
County Court of the district, or in Ireland to the chairman of the 
CivU BiU Court of the division in which either party resides, and the 
judge of the High Court of Justice or of the County Court, or the 
chairman of the Civil BiU Court (as the case may be) may make such 
order with respect to the property in dispute, and as to the costs of and 
consequent on the application as he thinks fit, or may direct such ap- 
plication to stand over from time to time, and any inquiry touching 



MABEIED WOMEN'S PROPERTY ACT, 1882. 199 

tlie matters in question to Ibe made in sueli manner as lie shall think 45 & 46 Vict, 
fit : ProTided always, that any order of a judge of the High Court of °- '^^' "' ^^- 
Justice to be made under the provisions of this section shall be subject 
to appeal in tiie same way as an order made by the same judge in a 
suit pending or on an equitable plaint in the said Court would be ; and 
any order of a County or Civil Bill Court under the provisions of this 
section shall be subject to appeal in the same way as any other order 
made by the same Court would be, and all proceedings in a County 
Court or CiviLBill Court under this section in which, by reason of the 
value of the property in dispute, such Court would not have had juris- 
diction if this Act or the Married "Women's Property Act, 1870, had 
not passed, may, at the option of the defendant or respondent to such 
proceedings, be removed as of right into the. High Court of Justice in 
England or Ireland (as the case may be), by writ of certiorari or 
otherwise as may be prescribed by any rule of such High Court ; but 
any order made or act'done in the course of such proceedings prior to 
such removal shall be valid, unless order shall be made to the contrary 
by such High Court : Provided also, that the judge of the High Court 
of Justice or of the County Court, or the chairman of the Civil BiU 
Court, if either party so require, may hear any such application in his 
private room : Provided also, that any such bank, corporation, com- 
pany, public body, or society as aforesaid, shall, in the matter of any 
such application for the purposes of costs or otherwise, be treated as a 
stakeholder only. 

18. A married woman who is an executrix or administratrix alone Married 

or joiutly with any other person or persons^ of the estate of any de- ^°e™utrii oT 
ceased person, or a trustee alone or jointly as aforesaid of property trustee, 
subject to any trust, may sue or be sued, and inay transfer or join in 
transferring any such annuity or deposit as aforesaid, or any sum 
forming part of the public stocks or funds, or of any other stocks or 
funds transferable as aforesaid, or any share, stock, debenture, deben- 
ture stock, or other benefit, right, claim, or other interest of or in any 
such corporation, company, public body, or society in that character, 
without her husband, as if she were a feme sole. 

19. Nothing in this Act contained shall interfere with or affect any Saying of 
settlement or agreement for a settlement made or to be made, whether ggj^^l^^g 
before or after marriage, respecting the property of any married and the power 
woman, or shall interfere with or render inoperative any restriction fj^^^° 
against anticipation at present attached or to be hereafter attached- to settlements. 
the enjoyment of any property or income by a woman under any 
settlement, agreement for a settlement, wiU, or other instrument ; but 

no restriction against anticipation contained in any settlement or agree- 
ment for a settlement of a woman's own property to be made or 
entered into by herself shall have any validity against debts contracted 
by her before marriage, and no settlement or agreement for a settle- 
ment shall have any greater force or validity against creditors of such 



200 MAERlED WOMEN'S PROPERTY ACT, 1882. 

45 & 46 Vict, woman tlian a like settlement or agreement for a settlement made or 
0. 75, B. 21 ^ 



entered into hy a man would have against liis creditors {ff). 

(ff) See Se Stonor, cited in note to s. 5, ante, p. 193. la Sursilly. Tanner, 13 
Q. B. J). 691, it Vfaa held that an order giving leaTe to enter judgment against a 
married -woman in respect of her separate estate should state that execution is to be 
limited to such separate estate as she is not restrained from anticipating, unless such 
restraint exists under a settlement of her own property made by herseQ. 

[By sects. 20 and 21, a married woman having separate estate is to be liable to the 
pariat for the maintenance of her husband, children, and grandchildren.] 

^e^alof 22. Tke Married Women's Property Act, 1870, and the Married 

93. ^° ' Women's Property Act, 1870, Amendment Act, 1874, are hereby 



c 



37 & 38 Vict, repealed : Provided that such repeal shall not affect any act done or 
right acqiiired while either of such Acts was in force, or any right or 
liability of any husband or Wife, married before the commencement of 
this Act, to sue or be sued under the provisions of the said repealed 
Acts or either of them, for or in respect of any debt, contract, wrong, 
or other matter or thing whatsoever, for or in respect of which any 
such right or liability shall have accrued to or against such husband 
or wife before the commencement of this Act (A). 
(A) See Se Soutar, W. N. (1884), 61, as to the extent of this repeal. 

Legal repre- 23. For the purposes of this Act the legal personal representative 
married °^ ^^7 married woman shall in respect of her separate estate have the 

woman. same rights and liabilities and be subject to the same jurisdiction as 

she would be if she were living. 
Interpretation 24. The word " contract " in this Act shall include the acceptance 
of any trust, or of the office of executrix or administratrix, and the 
provisions of this Act as to liabilities of niarried women shall extend 
to all liabilities by reason of any breach of trust or devastavit com- 
mitted by any married woman being a trustee or executrix or adminis- 
tratrix either before or after her marriage, and her husband shall not 
be subject to such liabilities unless he has acted or intermeddled in the 
trust or administration. The word " property " in this Act includes a 
thing in action. 
Conuneuce- 25. The date of the commencement of this Act shall be the first of 

January, one thousand eight hundred and eighty-three. 
Extent of 26. This Act shall not extend to Scotland. 

Short title ^^' ^^^^ ^^^ ^^y ^® °^^^^ ^^ *^® Married Women's Property Act, 

■ 1882. 



PETITION OF RlaHT ACT, 1860. 201 

PETITION OF EIGHT ACT, 1860. '' ^e'tZ"*' 

23 & 24 VICT. Cap. 34. 

riiM^»™*'ir^^''^*'T°^*w.'f''* ^""^ the. history of the remedy by petition of 
Son of wlf "•If''' .°l Y^'^^e^^' V.-C, irf Kir/c V. The Quem,U ^q. 558. A 
vS bv an Aot'^f r* ^' "^ '^'ff * -1 ^'^^.'^^^^^^ in a colony which have been 
pro^ce^M/l, 9 T ^i wTo^,' legia^ture in the Crown for the pnrposes of the 

™8ed^^S!.tl°' ^^ loss oocas oned by an act of a servant of the Crown & thi'sup" 
Z 16^TTs1in'^'^*^rP°4'^«"P,°„':,„^"" by an Act of ParHament {Tobinl. 
as^;^M nf »n^ffl • \l° "^"'- ^/-n^-J-^F^ • °°'" f°' *^« dismissal, without cause 
nrd^n^rl^J^^T "? *^' ™^ '-^' P'-^"'^^' ^ ^^- ^- 164) ; nor to obtain, out of 
subf^ts^thp,^J™iri^ government as compensation for debts due to British 
^^S! , p' y P*y™?,nt of an amount clamied to be due in respect of one of those 
to t^p'i™ ■"' "^VfS-i ?• ?■ ^- *" = 2 Q. B. D. 69) ; nor to obtain the payment 
to the persons entitled of booty granted by the Crown to the Secretary of StJte for 

f^.^^^-"'*r* 1°'- *^' ?^°^. ^""^ "^" °f "^^t^'in forces, and to ?e distributed 
^,rw^7^M«?r\f.'^^l^n? P'^^P^'^ti^ns {Ile£a«daa»cl Kirwee Booty, irSv 
£TL' y- f • ^ io^^ilt* ' ,^- ^m(l^** ' «")• -^^ *° *!>« f°"n of a Petitiok of Eight 
see sects. 1 and 2 of the Act. The suppUant cannot obtain discovery of documfnts 
^y f \^™™ {rhoma.Y.aeg., L E. 10 Q. B. 31, but see Tomline y.Reg., 4 Ex D 
t\'eVpuUHrS«.r4^]'"'=°^^'^''"' production of documents as against 
The following is the General Order in Chancery under the Act :— 

OEDEE, 1st Febetuey, 1862. Ord., i Feb. 

1862. 
PETITIONS OF EIGHT. Petitions of 

1. Upon Her Majesty's fiat being obtained to any petition of right "^^" 

presented in pursuance of tbe said Act and intituled in the Court of Pet^on of 

Chancery, such petition, with the fiat thereon, together with a printed ^^^^ *° ^^ 

copy of such petition and fiat (if the petition is in writing), shall be ^^' 

filed at the office of the Clerks of Eecords and Writs (o). 

(a) The petition is now filed at the Central OfSce, the Eecord and "Writ Clerks 
being abolished ; see Jud. (Officers) Act, 1879 ; E. S. C, Ord. LXI. See as to 
printing, R. S. C, Ord. LXVI. r. 7, infra. 

2. Every such petition, or the prjnted copy thereof, so filed shall be Kule 2. 
marked with the words " Lord Chancellor " or " Master of the EoUs," '^^^'^^^ with 
and if with the words " Lord Chancellor," then also with the title of j"u^e.° 

the Vice-ChanceUor before whom it is intended to be prosecuted. 

3. Every copy of a petition of right left at the office of the Solicitor Rule 3. 
of the Treasury in pursuance of the said Act, and every copy of a -^^^d and 
petition of right served upon or left at the last, or usual, or last known copies for 
place of abode of any person under the provisions of that Act shaU be ^^"i"®- 

a printed copy, sealed with the seal of the office of the Clerks of 

Eecords and Writs, in the same maimer as copies of biUs are now 

sealed. And the leaving or serving of any copy not printed or not 

sealed with the office seal shall be of no effect for any of the purposes 

of the said Act. 

4. A suppliant in any petition under the said Act desiring to file Eule 4. 

interrogatories for the examination of any person or persons who mav Jn^^rroga- 
1 . T . 11 ,1 J / ,1 ,1 1 ,, . "^ tones for 

be required to plead or answer thereto (other than her Majesty's examination 

Attorney-General) shall file such interrogatories at the same time as o* "respond- 



202 



PETITION OF EIGHT ACT, 1860. 



23 & 24 Viot. 
0. 34. 



Rule 5. 
Eight to 
petition in 
formd 



Rule 6. 
Rules as to 
petitioning 
in formd 
pmtperis. 

Rule 7. 
Practice in 
reference to 
suits shaU 
apply to pro- 
igeedings by- 
petition oi 
right. 



Rule 8. 
Defence to 
petition of 
right. 



Duties and 
fees of officers 
of the Court. 



such petition. And a copy, examined and marked by the Clerks of 
Eecords and Writs, ol the interrogatories which any respondent is 
required to answer shall be served upon such respondent, together 
with the copy of the petition. 

5. Any person who might be admitted to prosecute a suit in this 
Court in formd pauperis (J) may be admitted to prosecute in formd 
pauperis a petition of right intituled in this Court. And any person 
who might, if a defendant to an ordinary suit in this Court, have been 
admitted to defend in formd pauperis may be admitted to make his 
defence in formd pauperis to any petition of right instituted in this 
Court which he may be required to plead or answer to. But no person 
shall be admitted to prosecute any petition in formd pauperis without a 
certificate of counsel that he conceives the ease to be proper for relief 
in this Court, 

(i) As to suing in formd pauperis, see Ord. XVI. rr. 22—31, infra, pp. 340, 341. 

6. The same orders and rules shall apply with regard to any person 
admitted to sue or defend in formd pauperis under those orders as are 
applicable with regard to paupers in suits between subject and 
subject. 

7. So far as the same may be applicable, and except in so far as 
may be inconsistent with the said Act and with the preceding orders, 
the general orders from time to time in force as to proceedings in suits 
in this Court, and the practice and course of proceeding ia this Court 
in reference to such suits, shall be applicable, and apply and extend to 
proceedings in this Court in petitions under the said Act, which are, 
for the purposes of this order, to be considered as bills (c). 

(c) The petition being left at the office of the solicitor to the Treasury (r. 3), may 
be pleaded or demurred to, or answered, for ■which purpose further time may be 
allowed. In default it may be taken pro confesso, 23 & 24 Vict. c. 34, b. 8 ; a decree 
may be made and costs given as in an ordinary suit. Hid. ss. 9 — 14. See Tobin t. 
T/ie Queen, 11 W. R. 915. 

Notwithstanding the Act and these rules, any suppliant may proceed according 
to the practice before the Act (b. 18) ; under which the Court did not at the hearing 
of the petition enter into the merits, but directed a commission to inquire whether 
a suit should be instituted. 

8. The duties which under the said Act and the said orders may be 
required to be performed by officers of this Court, shall be performed 
by the officers respectively, who perform duties of a similar nature in 
suits in this Court between subject and subject. And the fees and 
allowances payable to all officers and solicitors of this Court in respect 
of matters under the said Act shall be such fees and allowances as, by 
the practice of the Court and the general orders from time to time in 
force, they are entitled to take and charge for similar proceedings in 
cases between subject and subject. 



CHANCERY FUNDS ACT, 1872. iiOS 

35 & 36 Vict. 

CHANCBEY FUNDS ACT, 1872. ''•^^- 

35 & 36 VICT. Cap. 44. 

All Act to abolish the Office of Aceoimtant-Geneml of the Sigh Court 
of Chancery in England, and to amend the Law respecting the 
Investment of Morny paid into that Court, and the Becurity and 
Management of the Moneys and Effects of the Suitors thereof 

[6th August, 1872.] 

Whereas it is expedient to abolish the office of the Accountant- 
General of the High Court of Chancery in England, and to mate pro- 
vision respecting the transaction of the husiaess of the office of the 
said Accountant-General, and the securing on the Consolidated Fund 
and managing the moneys, efEects, and securities of the suitors of the 
said Court : • 

Ajid whereas the Commissioners acting under a commission issued 
hy her Majesty to inquire amongst other matters into the provisions 
for the custody and management of the stocks and funds of the Court 
of Chancery of England, and to suggest improvements therein, by 
their report, dated the seventeenth of Eebruary, one thousand eight 
hundred and sixty-four, reported that it vras .expedient to establish a 
deposit account for suitors' moneys in the Court of Chancery, and to 
allow to the suitors interest at the rate of two per cent, per annum 
upon the moneys belonging to them whilst in the custody of the Court, 
but without depriving them of the right to require the investment 
thereof at any time on their own behalf and at their own risk : 

And whereas it is expedient to provide for the establishment of such 
deposit account : 

Be it enacted, &c., as follows (that is to say) : 

Preliminary. 

I. This Act may be cited as " The Court of Chancery (Funds) Act, Slioit title. 
1872." 

n. This Act shall, save as regards the making of rules and general Commenoe- 
orders as hereinafter mentioned, come into operation upon a day to be 
fixed by a rule to be made under this Act in that behalf, which day is 
hereinafter referred to as the commencement of this Act, and as to the 
making of any rules and general orders thereunder this Act shall come 
into operation on the day of the passing thereof (a). 

(a) See the Supreme Court Funds Rules, 1884, infra. 

TTT. InthieAct— 

The term " the Treasury " means the Commissionersof her Majesty's Definitions. 

Treasury for the time being, or any two or more of them. 
The term " Court of Chancery " means the High Court of Chancery 

of England, and includes the Lord Chancellor and any other 



204 



CHANCERY FUNDS ACT, 1872. 



35 & 36 Vict, 
c. 4i, 8. 3. 



"Securities." 



"Securities 
in Coui-t." 



" Money in 
Couri;." 



Judge intrusted with, the care and commitment of the custody 
of the persons and estates of persons found idiot, lunatic, or of 
unsound mind. 

The term "order of the Court of Chancery" means such order, 
decree, report, certificate, or direction of the Court of Chancery as 
defined by this Act, or any judge or officer thereof, as may be 
prescribed by a rule made under this Act. 

The term " General Order of the Court of Chancery " means a 
general order made by the Lord Chancellor, either alone or with 
the assistance of other judges, and either in Chancery or in Lunacy. 

The term " person" includes a body corporate and company. 

The term " dividends " includes interest or other periodical produce. 

The term " Government securities" means any annuities, exchequer 
bonds, exchequer bills, and other parliamentary securities of the 
Government of the United Kingdom. 

The term "securities" includes Government securities and any 
security of any foreign state, any part of her Majesty's dominions 
out of the United Kingdom, or any body corporate or company, or 
standing in books kept by any body corporate, company, or person 
in the United Kingdom, and all stock, funds and effects. 

The term " securities in Court " means any securities as defined by 
this Act standing or deposited in the name or to the credit or 
account of the Accountant-General of the Court of Chancery or of 
the Paymaster-General on behalf of the Court of Chancery, or 
placed to the credit of a cause, matter, or account in that Court. 

The term " money in Court " means any sum of money paid into the 
Bank of England with the privity of the Accountant-General of 
the Court of Chancery or of the Paymaster-General on behalf of 
the Court of Chancery, or placed to the credit of any cause, matter, 
or account in the Court of Chancery, and includes dividends on 
securities in Court and interest on money on deposit. 



Abolition 
of office of 
Accountant- 
General of 
the Court of 
Chancery, and 
performance 
of duties by 
Paymaster- 
Greneral. 



Accountant- General's Office. 

IV. On the commencement of thjs Act the office of the Accountant- 
General of the Court of Chancery shall be aboUshed, and her Majesty's 
Paymaster-General (in this Act referred to as the Paymaster-General) 
for the time being shall perform aU the duties and exercise 
all the powers and authorities which before the commencement 
of this Act were performed by or vested in or capable of being exer- 
cised by the Accountant-General of the Court of Chancery : Provided 
that nothing in this Act shall render the Paymaster-General incapable 
of being elected to or sitting or voting in the House of Commons, or 
cause a member of the House of Commons upon becoming Paymaster- 
General to vacate his seat. 

The Paymaster-General may do any act, sign or execute any instru- 
ment, and exercise any authority required or authorised to be done, 
signed, executed, or exercised by him for the purposes of this Act, or 



CHANCERY FUNDS ACT, 1872. 205 

any rule made thereunder, by a deputy or deputies appointed Iby Hm 35 & 36 Viot. 
in -writing under his hand. "' *^' °' ^- 

V. The Consolidated Fund of the United Kingdom shall be liable to Liability of 
make good to the suitors of the Court of Chancery all money in Court -p^^ioi^ 
and all securities in Court, whether the same have been paid, trans- default of 
ferred, or deposited into or in Court before or after the commencement (jgn^^l ^^' 
of this Act, and all money and securities vested in the Paymaster- 
Greneral for the time being by or in pursuance of this Act ; and if the 

Lord Chancellor, either with or without a representation made to him 
by any suitor of the Court of Chancery, certifies to the Treasury in 
writing that the Paymaster-General has failed to pay any money in 
Court, or transfer or deliver any securities in Court, required by any 
order of the Court of Chancery to be paid, transferred, or delivered 
from his account, or has been guilty of any default with respect to 
such money or securities, the Treasury shall cause to be paid out of the 
growing produce of the 'Consolidated Fund into the Bank of England, 
to the credit of the Paymaster-General for the time being on behalf of 
the Court of Chancery, such sum of money as may be certified by the 
Lord Chancellor in writing to be required to pay the money so required 
to be paid, or to replace the securities so required to be transferred or 
delivered or make good such default. 

VI. "Where under any Act (whether passed before or after the com- Construotion 
mencement of this Act), or otherwise, any money or securities would, referring to' 
if this Act had not passed, be capable of being paid, transferred, or Accountant- 
deposited to or into or in the name of or to the account or credit of or "®°®™ • 
with the privity of the Accountant-General of the Court of Chancery, 

or the Accountant-General of the Court of Exchequer, or to or into or 
in the Court of Chancery, the same shall after the commencement of 
this Act be paid, transferred, or deposited to the credit or account of or 
with the privity of the Paymaster-General for the time being {b) on 
behalf of the Court of Chancery, and shall be subject to the like trusts, 
orders, directions, powers, and provisions as if he were the Accountant- 
General of the Court of Chancery or Court of Exchequer, as the case 
may be, and the orders of the Court of Chancery relating thereto shall 
have the same effect as the like orders of the Court of Chancery or 
Court of Exchequer would have had if this Act had not passed. 

All Acts of Parliament, all rules and orders made in pursuance of 
any Act of Parliament, all general orders of the Court of Chancery, all 
orders of the Court of Chancery, and all instruments and proceedings of 
every description referring to the Accountant-General of the Court of 
Chancery or Court of Exchequer, shall, subject to the provisions of 
this Act and of any rule made thereunder, be construed and put into 
execution as if the Paymaster-General for the time being were therein 
named or referred to in place of such Accountant-General, so however 
that all money and securities shall be paid, transferred, or deposited to 
the credit or account of the Paymaster-General for the time being on 
behalf of the Court of Chancery, and not into the name of the person 
who is such Paymaster-General. 



206 



CHANCEKT FUNDS ACT, 1872. 



35 & 36 Vict, 
c. a, B. 6. 



'Fra miTi g of 
orders. • 



Office of 

Paymaster- 
General for 
Chancery 
business. 



Vesting of 
property in 
Paymaster- 
G-eneral for 
time being. 
12 Geo. 1, 
0. 32, B. 7 ; 
54 Geo. 3, 
0. 14. 



Transfer of 
securities and 
receipts of 
dividends. 



Certificate of 
itrar. 



Provided that notHng in tMs section shall affect the Queen's Re- 
membrancer, or the performance by him of any duties formerly per- 
formed by the Accountant-General of the Court of Exchequer, or 
apply to any act, rule, order, instrument, or proceeding relating to 
such duties. 

(i) No securities will be transferred to the account of the Paymaster-General on 
which there can be any liability {Se Stephens, 8 Ch. 465). 

Vii. All general orders of the Court of Chancery, and all orders of 
the Court of Chancery, and all instruments and proceedings relative to 
business of the Court of Chancery to be transacted by the Paymaster- 
General ia pursuance of this Act (in this Act referred to as chancery 
business) shall, after the commencement of this Act, be framed and 
expressed in such manner as may be necessary for carrying the provi- 
sions of this Act with respect to the Accountant-General and Paymaster- 
General into effect. 

VIII. The Treasury shall cause the Pajrmaster-General to keep, in 
the neighbourhood of the place where the Court of Chancery ordinarily 
holds its sittings, an office for the purpose of carrying on chancery 
business, and for mating for the purpose of chancery business pay- 
ments of small amount in cash, and shall from time to time provide 
such clerks and officers as are necessary for conducting such business 
and making such payments. 

IX. All securities and money vested in the Paymaster-General in 
pursuance of this Act shall vest in the Paymaster-General for the 
time being on behalf of the- Court of Chancery without any convey- 
ance, assignment, or transfer, notwithstanding the death or removal 
from office of the person who is Paymaster-General, and shall be held 
by him in trust to attend the orders of the Court of Chancery, and aU 
acts done by the Paymaster-General with reference to such securities 
and money in pursuance of an order of the Court of Chancery shall 
be valid and effectual. 

X. AU securities from time to time transferred, standing, or depo- 
sited into, in, or to the account of the Paymaster-General in pursuance 
of this Act, shall be held by the Paymaster-Gener&l in trust in the 
several causes and matters in which such securities are transferred, 
standing, or deposited respectively, and shaU not be transferred, sold, 
or delivered out except in pursuance of an order of the Court of 
Chancery, but the certificate of a registrar of the Court of Chancery 
or of a master or registrar in lunacy countersigned by the Paymaster- 
General shall be sufficient evidence of the order referred to in the 
certificate, and of the directions contained in such order, and shall be 
a necessary and sufficient authority to the Governor and Company of 
the Bank of England and every person for transferring on sale or 
otherwise or delivering out any securities standing in the books of or 
deposited with such bank or person to the credit or account of the 
Paymaster- General for the time being on behalf of the Court of 
Chancery, and the securities directed by any such certificate to be 



CHANCEEY FUNDS ACT, 1872. 207 

transferred or delivered out shall he transferred or delivered out 35 & 36 Vict. 
aocordingly on behalf of the Paymaster-General by some ofilcer of °' '^*' ^" '"'• 
such bank or person. 

The Governor and Company of the Bank of England shall, by one 
of their cashiers or some other proper officer, from time to time receive 
all dividends accruing due on all securities -which are standing to the 
account of the Paymaster-General for the time being on behalf of the 
Court of Chancery, of which a certificate has been sent to them by the 
Paymaster-General, and shall also receive any principal money pay- 
able in respect of any of such securities, and the said certificate shall 
be a sufficient authority to them to receive such dividends and prin- 
cipal money ; and any receipt given by the said Governor and Com- 
pany, or one of their cashiers or other proper officer, for any dividends 
on any securities standing to the said account, or any principal money 
payable in respect of any such securities, shall be a good discharge 
for the same ; and the said Governor and Company shall place all 
money received by them in pursuance of this section to the credit of 
the Paymaster-General for the time being, on behalf of the Court of 
Chancery (c). 

(c) See the Supreme Court Funds Act, 1883, s. 7, infra. 

XI. Section 19 of the Act of the session of the 16th and 17th years Indorsement 
of the reign of her present Majesty, c. 59, intituled, "An Act to ^^ "'^^^f'^^®^' 
repeal certain stamp duties, and to grant others in lieu thereof, to Paymaster- 
amend the laws relatiug to stamp duties, and to make perpetual certain "^^'^^ral. 
stamp duties iu Ireland" (which section relates to the endorsement of 
drafts or orders drawn upon bankers for the payment of money), shall 
extend to any dociiment issued by the Paymaster-General in pursu- 
ance of this Act, which authorises the payment of money. 

Xn. The provisions of the Act of the 24th and 25th years of the Forgery of 
reign of her present Majesty, c. 98, intituled, " An Act to consolidate pfymaTto-^ 
and amend the statute law of England and Ireland relating to indict- General or 
able offences by forgery," which have reference to the forging or 2r&^^"^ot. 
altering of any instrument made or purporting to be made by the o. 98, s. 33. 
Accountant-General of the Court of Chancery, shall apply to every 
instrument made, signed, or countersigned, or purporting to be made, 
signed, or countersigned, by the Paymaster-General, or any deputy, 
clerk, or officer of the Paymaster-General, and to the forgery and 
alteration of any signature or counter-signature of such Paymaster- 
General, deputy, clerk, or officer. 

Xm. Nothing in this Act shall be deemed to recLuire the Governor Indemnity 
and Company of the Bank of England to keep the account of the g„?f°„^°* 
Paymaster-General on behalf of the Court of Chancery causewise, and 
the Governor and Company of the Bank gf England are hereby indem- 
nified for all acts and things done or permitted to be done in pursuance 
of this Act, or of any rule purporting to be made thereunder, or of any 
order of the Court of Chancery made or purporting to be made in pur- 



208 



CHANOEET PUNDS ACT, 1872. 



35 & 36 Vict. 
0. 44, s. 13. 



Establish- 
ment of 
suitors' de- 
posit account. 



Saving for 
inyestments 
made under 
order of 
Court. 



suance of this Act or of any such rule, or done or permitted to be done 
in pursuance of any certificate signed and countersigned as directed by 
this Act, and such acts and things respectively shall not be questioned 
or impeached in any Court of law or equity to the detriment of such 
Governor and Company. 

XrV. Save as otherwise provided by any rule made under this Act, 
all money in Court paid in either before or after the commencement of 
this Act shall, subject to the provisions of this Act and of any rule 
made thereunder, be placed on deposit, and in the case of money in 
Court paid in after the commencement of this Act without any appli- 
cation or request for that purpose, and when so placed on deposit shall 
bear interest at the rate of 2 per cent, per annum, together with any 
income tax chargeable thereon. 

Any money which may at any time be standing to the credit of the 
Paymaster-G-eneral on behalf of the Court of Chancery b'eyond the 
amount which the Paymaster-General considers to be required for 
meeting current demands shall be placed in the hands of the Commis- 
sioners for the Reduction of the National Debt, who shall from time to 
time pay to the credit of the Paymaster- General on behalf of the 
Court of Chancery such sum as, with the money to the like credit, 
may be certified by him to be required to meet current demands, and 
the Consolidated Fund of the United Bjngdom shall be liable to make 
good all money so placed in the hands of the Commissioners for the 
Reduction of the National Debt, and the interest payable on sums 
placed on deposit, in like manner as it is liable to make good money 
in Court. 

XV. Any money in Court paid in either before or after the com- 
mencement of this Act which under any general order of the Court of 
Chancery or rule under this Act, or under an order of the Court of 
Chancery, is required to be laid out in any particular investment, 
shaU, subject to any rule made under this Act, be so laid out notwith- 
standing anything in this Act. 

[Section 16 (empowering tlie Court to make orders for the conversion of stock in 
Court and the transfer of the proceeds to the suitors' deposit account) was repealed 
by the Judicature Act, 1875, 8. 16, post, which directs that rules may be made as to 
investment of money in. Court in securities and conversion of Government securities 
into money.] 

[Section 17 provides for the application of money placed in the hands of the 
Commissioners for the Reduction of the National Debt.] 



Hules and Accounts. 

Treasuryrules XVIII. The Lord Chancellor, with the concurrence of the Treasury, 

for regulatmg ^^^j fj-gj^ ^jme jq -jjime make rules for carrying this Act into effect, 

(See 12 Geo. 1, and regulating the deposit, payment, delivery, and transfer in, into, 

33 v'T'^^g^^ and out of the Court of Chancery of money and securities which belong 

to the suitors of that Court, or are otherwise capable of being deposited 

in or paid or transferred into that Court, or in or into the Bank of 

England with the privity of the Paymaster- General, or are under th§ 



CHANCERY FUNDS ACT, 1872. _ 209 

custody of tie Court of Chancery, and the evidence of such deposit, 35 & 36 Viot. 
payment, delivery, or transfer, and the investmen'; of and other dealing "" **' "■ ^^- 
with money and securities in Court in pursuance of the orders of the 
Court of Chancery, and the execution of the orders of the Court of 
Chancery and the powers and duties of the Paymaster-General with 
reference to such money and securities, and in particular for doing aU 
or any of the following things : — 

(1.) Carrying into effect the transfer of the oifice of the Accountant- 

General to the Paymaster- General : 
(2.) Regulating the mode in which the Paymaster-General is to Dealings witli 
deal with money and securities in pursuance of the orders of the ™°"®y ^""^ 
Court of Chancery, and the mode in which effect is to be given to pursuance of 
an order of the Court of Chancery which is to be executed by or q^^^^ °^ 
through the office of the Paymaster-General for Chancery busi- Certificates of 
ness, and generally the arrangements between that office and the Paymaster- 
Court of Chancery and the officers thereof, and the certificates and 
information to be given by the Paymaster-General with reference 
to Chancery business : 
(3.) Regulating the deposit, payment, sale, transfer, and delivery Payment to 
with, to, and by the Paymaster-General of the said money and g.g^^**'^" 
securities, and the proceedings, evidence, and duties of persons in (See 12 Geo. 1, 
relation thereto : "■ ^^' ^^- ^-^O 

(4.) Determining the mode of ascertaining the value of Government 
securities transferred to the Commissioners for the Reduction of 
the National Debt, or otherwise .ordered to be dealt with by the 
Paymaster-General : 
(5.) Regulating the placing on and withdrawal from deposit of Placing 

money in Court, whether paid in before or after the commence- "lo^^y o"! 

•' , deposit, 

ment of this Act, and the payment or crediting of interest on 

money placed on deposit : 

(6.) Determining the smallest amount which is to be invested in 
securities, unless directed to be invested notwithstanding the 
smallness of the amount, and determining the smallest amount 
which is to be placed or remain on deposit, and the smallest 
amount of money on deposit on which interest in pursuance of 
this Act is to be credited to an account to which money placed on 
deposit belongs : 

(7.) Determining the time at which money in Court is to be placed Computing 
on deposit, and at which interest on money so placed on deposit is ^^''^^^^ • 
to begia and cease, and the mode of computing such interest : 

(8.) Determining the cases in which interest on money placed on 
deposit, and the dividends on any securities standing to the 
account of the Paymaster-General on behalf of the Court of 
Chancery, is or are to be placed on deposit : 

(9.) Dealing with accounts on which the balance of money and 
securities together is less than five pounds, and providing for the 

M, P 



210 CHANCERY FUNDS ACT, 1872. 

35 & 36 Vict. periodical publication of a list of the accounts not dealt mth for a 

0. 44, s. 18. 



period of at least fifteen years : 
(10.) Eegulating the mode of framing and expressing orders of the 
Court of Chancery, instruments and proceedings relative to the 
Chancery business of the Paymaster-General : 
(11.) Abrogating any general orders of the Court of Chancery 

relative to the matters aforesaid : 
(12.) Eevoking and altering any rules previously made. 
Every rule purporting to be made in pursuance of this section shall 
come into operation at the date of such rule or any later date therein 
in that behalf mentioned, and have effect as if it were enacted in this 
Act. 

[Sect. 19 authorises the making of general orders for regulating the practice of 
the Court of Chancery for the purpose of carrying into effect the Act and any 
rules made thereunder.] 

[By sect. 20 the Treasury are to keep accounts and have them audited.] 

[Sect. 21 relates to the transfer'of buUdings.] 

[Sects. 22 — 25 provide for a pension to the then Accountant-General ; the status 
of the then esdsting officers of the Accountant- General ; the transfer of securities to 
the Paymaster-General and alteration of accounts at Bank of England, &c. ; and for 
dealing with certain slave compensation funds standing in the name of the 
Accountant- General. ] 

Repealing [Sect. 26 repealed wholly the Acts specified in schedule 2, part 1, and partly 

clause. those specified in schedule 2, with the usual savings as to anything done or title to 

land or right to pension, &c., gained under those Acts.] 

SCHEDULES. 



SCHEDULE ONE. 

[Schedule I. enumerated certain Acts relating to Slave Compensation, referred to 
in sect. 25.] 

SCHEDULE TWO. 

Past I. — Acts whoelt Repeat.ed. 

12 Geo. 1, c. 32 ; 12 Geo. 1, c. 33 ; 32 Geo. 3, c. 42 ; 37 Geo. 3, o. 135 ; 52 Geo. 
3, c. liv. (local) ; 64 Geo. 3, c. 14 ; 55 Geo. 3, o. Mv. (local) ; 58 Geo. 3, c. Ixix. 
(local) ; 59 Geo. 3, c. xxvii. (local) ; 6 & 6 WiU. 4, o. 45 ; 6 & 7 Will. 4, o. 5 ; 6 & 7 
Will. 4, 0. 82 ; 4 & 5 Viet. c. 18 ; 9 & 10 Vict. c. 81. 

Paet II. — Acts paetly IIepbaiiii. 

36 Geo. 3, o. 52, Legacy Duty Act (see pp. 51, 52, ante). So much of sect. 
32 as requires the Accountant-General to invest the money therein mentioned in the 
purchase of Three per Cent. Consolidated Bank Annuities or to give any certificate. 

Part of 3 Geo. 4, c. 69, an Act relating to Fees. 

Part of 3 & 4 Will. 4, o. 73, Abolition of Slavery. 

Part of 5 Vict. c. 5, Administration of Justice. 

10 & 11 Vict. c. 96, an Act for better securing Trust Funds and for the relief of 
Trustees, section 3, p. 60, ante, 

15 & 16 Vict. c. 80, sect. 59. 

Parts of 15 & 16 Vict. c. 87, Relief of Suitors. 

16 & 17 Vict. 0. 98, Relief of Suitors. The whole Act, except sect. 11. 

30 & 31 Vict. o. 87, The Court of Chancery (Officers) Act, 1867, sects. 11 and 12. 
32 & 33 Vict. c. 91, The Courts of Justice (Salaries and Funds) Act, 1869, 
sects. 4 to 7. 



CHANCERY FUNDS AMENDED ORDERS, 1874. 211 

CHANCERY FUNDS AMENDED OEDERS, 1874. 
OEDEES OF COUET. 

Undek the CotTET OP Chanoeet (Funds) Act, 1872, 35 & 36 Vior. Cap. 44 ; and 
THE Trttstee Relief Act, 1847, 10 & 11 Vict. Cap. 96. 

The 22nd day of December, 1874. 

[Rule 1 revoked the Chancery Funds Orders, 1872, and provided that these Commence- 
Amended Orders should come into operation on January 11th, 1875.] ment of 

orders. 

2. In these orders, and in orders as herein defined, terms shall Interpretation 
have the same meaning as the same terms are defined to have in the *®''"'^' 
Court of Chancery (Funds) Act, 1872, and as prescribed by the 
Chancery Funds Consolidated Eules, 1874 (a) ; and the term " Court " 
shall mean the Court of Chancery, and iuclude a judge thereof, 
whether sittiag in coiirt or at chambers ; and the term " order " shall 
include a decree; and the term "cause or matter" shall, in these 
orders, include a separate account in a cause or matter, and a matter 
intituled merely as an account ; the words importing the singular 
number shall include the plural number, and words importing the 
plural number shall include the singular number ; the words importing 
males shall include females. 

(a) The Chancery Funds Consolidated Rules, 1874, are expressly revoEed by the 
Supreme Court Funds Rules, 1884, r. 1, infra, but the Amended Orders of 1874 
appear to be revoked only so far as they are inconsistent with the Supreme Court 
Rules, and it is therefore considered necessary to retain them in the present 
edition. The Chancery Funds Rules, 1874, will be found in 9 Ch. xxix. 

[Rule 3 abrogated certain orders in Chancery.] 

4. A person who shall make a transfer or payment of money or Notice of 

securities into Court or a deposit of securities in Court, as provided P*y™;™*'> 

^ ' ^ transfer, or 

by rule 27 of the Chancery Funds Consolidated Eules, 1874(6), shall deposit on 
forthwith give notice thereof to the solicitors of the persons upon ^^^^^st. 
whose application the order directing such transfer, payment, or 
deposit was made, or to such persons if they have no solicitor ; or if 
the order was made on the application of the person making such 
transfer or payment, to the solicitors of the other parties appearing 
on the application. 

A person making a transfer, payment, or deposit upon request to 
the credit of a cause or matter, as provided by rule 25 (c) of the said 
rules, shall forthwith give notice thereof to the solicitors on the record 
for the parties to the cause, or in case of a matter, to the persons 
interested, if known, or to their solicitors, if any, stating in such 
notice what the money or securities comprised in such transfer, 
payment, or deposit represent, and for what purpose such transfer, 
payment, or deposit has been made ; and such notices may be sent by 
post {ce). 

(4) The rule here referred to is substantially reproduced by r. 36 of the Supreme 
Court Funds Rules, 1884, infra. 

p3 



212 



CHANCEKT FCJNDS AMENDED OKDERS, 1874. 



Chancery (c) The rule here referred to (which related to the bringing of funds into Court 

Eunds otnerwise than in pursuance of an order) is substantially reproduced by r. 30 of the 
Amended Supreme Court Funds Rules, 1884, infra. 
Orders, 1874. (ce) On the question of giving notice under the present practice in pursuance of 

this rule, see He Stening, W. N.. (1884), 142, a case under tiie Trustee Belief Act, 

cited ante, p. 53. 

Practice [Rules 5 — 10 relating to notice of payment or transfer into Court under the 

under Trustee Trustee Relief Act (10 & 11 Vict. c. 96), and to the application by petition or sum- 
Relief Act. mons for payment out, wiU be found set out, p. 53, ante."] 



Petitions to 
state whether 
duty is paid 
or not. 



Petitions 
respecting 
money or 
securities on 
list of 

undealt-with 
funds. 



Certain 
articles and 
securities not 
to be received 
by Clerks of 
Records and 
Writs. 

Proceedings 
and docu- 
ments in a 
cause to be 
marked v^ith 
reference to 
record. 



11. Eveiy petition for dealing witli 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. 

[Rule 12 relating to registrars' certificates appears to be obsolete.] 

[Rule 13, providing that certain applications may be made at Chambers, appears 
to be obsolete.] 

14. "When a cause or matter has been inserted in the list mentioned 
in rule 91 {d) of the Chancery Funds Consolidated Eules, 1874, the 
fact shall be stated in every petition or summons affecting any money 
or securities to the credit ,of such cause or matter. In cases in which 
the money or securities affected by such petition shall together amount 
to or exceed in value 500^., a copy of such petition, and notice of all 
proceedings in Court or at chambers shall (unless the Court otherwise 
directs), be served on the official solicitor of the Court, who shall be 
at liberty to appear and attend thereon (e). 

(d) The rule here referred to is substantially reproduced by r. 101 of the 
Supreme Court Funds Rules, 1884, infra. 

(e) As to the costs of the official solicitor, see Be Claris, 21 Ch. D. 776. 

[Rule 15 is reproduced by Ord. LV. r. 2 (11), infra.'] 

16. The Clerks of Eecords and Writs (/) shall not receive into 
their custody effects of the suitors consisting of jewels or plate, or 
other articles of a like nature, or negociable securities. 

(/) See now Ord. LX. r. 3 ; Ord. LXI. r. 1, infra. 

17. No order in a cause shall be passed or entered, and no certificate 
in a cause of a chief clerk, or of a taxing master of the Court, shall 
be signed or filed, and no petition in a cause shall be answered, and 
no summons in a cause shall be issued, and no affidavit made in a 
cause shall be filed, until the same respectively be either marked with 
the reference to the record, as prescribed by the 1st of the Consoli- 
dated Orders, rule 48, or be inscribed with a note indicating that the 
cause was commenced prior to 2nd November, 1852, and the correct- 
ness of such reference may be required to be authenticated by the 
official seal of the Clerks of Eecords and Writs being impressed on 
every such document (^). 



(0) See Ord. LXI. r. 19, infra. 



CHANCERY FUNDS AMENDED ORDERS, 1874. 218 

18. The duplicate orders or records to Tbe deposited with the clerks Chancery 
of entries pursuant to rule 18 (A) of the Chancery Funds ConsoHdated j^^f^ 

Eules, 1874, shall annually (or oftener if the senior registrar shall Orders, 1874. 
direct), be bound up in volumes of convenient size, and indexed, and 



transmitted to the Eeport Office, in the same manner as written orders OTdera to^be 
are now bound up, indexed, and transmitted, and written office copies deposited 
or extracts may be made therefrom, subject to the existing regulations ^'eutoS^^ 
relating thereto. 

(A) The rule here referred to is reproduced mutatis mutandis by r. 24 of the 
bupreme Court Funds Rules, 1884, infra. 

19. Solicitors shall be entitled to charge and shall be allowed the Solicitors' 
same fees on proceedings under these orders [and under the Chancery ^^^' 
Funds Consolidated Eules 1874] as they are, by the general orders 
and practice of the Court, entitled to charge and to be allowed in 
respect to proceedings of a similar or analogous description ; and shall 
be entitled to charge and shall be allowed the same fees for printed 
copies of orders as they are now entitled to charge and to be allowed 
for written copies thereof (i). 

(s) An order of Court of the same date as these Amended Orders gave a schedule 
of fees to be paid in the Report Office for printed copies of orders to be acted upon 
by the Chancery Paymaster, and for printed office or certified copies thereof. The 
Report Office is now merged in the Central Office (Judicature (Officers) Act, 1879, 
as. 5, 6) ; and the fees for copies are those proTided by the Order as to Court Fees, 
1884, infra. 



JUDIOATUEE (FUNDS, &c.) ACT, 1883. 46 & 47 Vict. 

u. 29. 
46 & 47 VICT. Cap. 29. 



An Act to consolidate the Accounting Departments of the Supreme 
Court of Jvdicature, and for other purposes. 

[20th August, 1883.] 

Whereas it is expedient that there should be but one accounting 
department for the Supreme Court of Judicature and all the Courts 
and divisions thereof, and it is further expedient to amend certain 
provisions of the Chancery Funds Act, 1872, and to provide for faciH- 35 & 36 Vict. 
tating the business of the said department : "■ **' ^- ^*'- 

Be it enacted, &c., as follows : 

1. From and after the commencement of this Act there shall be Pay office of 
one accounting department for the Supreme Court of Judicature. S^^ Supreme 

2. All securities and money at the time of the commencement of ptm^g i^ 
this Act vested in the Paymaster-General in pursuance of the Chancery Chancery 
Funds Act, 1872 (o), and all securities and money at anytime after the ^'"^^°'^' 
commencement of this Act transferred or paid into or deposited in 



214 



JUDICATUBE fFUNDS, &c.) ACT, 1883. 



46 & 47 Viot. 
u. 29, B. 2. 



35 & 36 Viot. 
44, B. 10. 



Validity of 
payments, 
&o. pursuant 
to Rules of 
Court. 



38 & 39 Viot, 
0. 77. 



Hemittanoes 
by post. 



Amendment 
of 35 & 36 
Viet. V. 44, 
s; 10. 



Short title. 



Court, to tlie credit of any cause, matter, or account, in the Chancery 
Division of the High Court of Justice, shall he vested in her Majesty's 
PaymasterrGeneral for and on behalf of the Supreme Court of Judi- 
cature, and shall continue to be and be subject to all the provisions of 
the Chancery Punds Act, 1872, and to the rules heretofore made and 
now in force under that Act, subject to such alterations therein and to 
such other and further rules as shall from time to time be made as 
thereby provided. 

(a) See this Act, ante, p. 203. 

[Seotions 3 and 4 relate to funds in other divisions.] 

5. AU acts done by the Paymaster-General with reference to money 
and securities in Court (whether such money and securities be paid, 
transferred, or delivered into Court under this Act or under the pro- 
visions of the Chancery Funds Act, 1872), pursuant to and in accord- 
ance with the provisions of any general rules of the Supreme Court 
of Judicature made under the provisions of the Supreme Court of 
Judicature Act, 1875, and Acts amending the same, shall be as valid 
and effectual as if they had been done in pursuance of an order of the 
High Court of Justice or of the Court of Appeal. 

6. If under any rules made by the Lord Chancellor with the con- 
currence of the Treasury, or any regulations of the Treasury, the 
Paymaster-General be authorized to make payments of money to 
persons entitled thereto upon their request by transmitting by post to 
such persons crossed cheques or other documents intended to enable 
such persons to obtain payment of the sums expressed therein, the 
posting of a letter containing such cheque or document, and addressed 
to any such person entitled thereto at the address given by him in his 
request, shall, as respects the liability of the Paymaster-General and 
of the Consolidated Pund respectively, be equivalent to the delivery of 
such cheque or document to such person himself. 

7. Any rules made by the Lord Chancellor with the concurrence of 
the Treasury under the provisions of the Chancery Punds Act, 1872, 
or this Act, may determine what evidence of an order of the High 
Court of Justice or Court of Appeal, and of the directions contained in 
such order, shall be necessary or sufficient, or necessary and sufficient 
to authorise the Governor and Company of the Bank of England or 
any other person to transfer on sale or otherwise, or to deliver out, any 
securities or other things standing in the books of or deposited with 
such bank or person to the credit or account of the said Paymaster- 
General for the time being under this or the aforesaid Act ; and such 
securities or things shall be transferred or delivered out accordingly, 
on behalf of the Paymaster-General, by some officer of such bank or 
person, anything in sect. 10 of the Chancery Punds Act, 1872, to the 
contrary thereof notwithstanding. 

8. This Act maybe cited as the Supreme Court of Judicature (Punds, 
&c.) Act, 1883. 



SUPREME COURT FUNDS RULES, 1884. 215 

SUPEEMB COTJET FUNDS EXILES, 1884. 

I, the Eight Honourable Eoundell, Earl of Selborne, Lord High 
GhanceUor of Great Britain, with the concurrence of the Lords Com- 
missioners of her Majesty's Treasury, do hereby, in pursuance of the 
powers contained in " The Court of Chancery Funds Act, 1872," " The 
Supreme Court of Judicature Act, 1875," "The Supreme Court of 
Judicature (Funds, &c.) Act, 1883," and of every other power enabling 
me in that behalf, make the following rules : — 

L Operation of Eitles aijd Inteepsetation op Teems. 

1. These rules shall come into operation on the 1st day of March, Commenoe- 
1884, and may be cited as "The Supreme Court Funds Eules, i884." "^jesand 

2. The Chancery Funds Consolidated Eules, 1874,* are hereby re- short title. 

voked as from the day on which these rules come into operation ; and Repeal of 

all other rules or general orders prescribing the mode of dealing with ^^igg - 

funds in Court, and containing any provisions relating to funds in * por these 

Court inconsistent with these rules, are hereby revoked, and these "^les, see 

9 Oh xxix 
rules substituted therefor, as from the same day : — Provided, that the 

rules hereby revoked shall continue to apply to orders made but not 

-fuUy acted upon before these rules come into operation, so far as is 

iudispensable for the purpose of duly giviag effect to such orders : but 

a certificate of a registrar as an authority for a sale or transfer of 

securities shall not in such cases be req^uired. 

3. In these rules and in orders as herein prescribed and defined, Interpretation 
terms shall have the same meaning as the same terms are defined to 
have in the Eules of the Supreme Court, 1883, and the following words 
shall have the several meanings hereby assigned to them, viz. : — 

" Paymaster " means her Majesty's Paymaster-General for the time 
being for and on behalf of the Supreme Court of Judicature, or 
the Assistant Paymaster-General for Supreme Court business for 
the time being deputed by the Paymaster-General to act on his 
behalf for such business : 

"Pay Office " means the Paymaster-General's Office for business of 
the Supreme Court of Judicature : 

"Pay Office Account" means the account of the Paymaster-General 
for the time being for and on behalf of the Supreme Court of 
Judicature : 

"Audit Office" means the branch of the Department of the Comp- 
troller and Auditor General, in which the audit of the accounts of 
the Pay Office is conducted : 

" Bank " means the Bank of England, or the Governor and Company 
of the Bank of England : 

" Company " includes oorpotation or body corporate : 

" Government securities " means Consolidated SI. per centum An- 
nuities, or Eeduced 31. per centum Annuities, or New SI. per 
centum Annuities, or 2^1. per centum Annuities ; 



of terma. 



216 



SUPREME COURT FUNDS RULES, 1884. 



Supreme 
Court Funds 
Rules, 1884. 



"Funds," or "funds in Court," means any money, Government 
stock or annuities, or otter securities, or any part thereof standing 
or to be placed to the Pay Office Account in the hooks of the Bank, 
of England or of any other company : 

"Lodge in Court" means pay or transfer into Court, or deposit in 
Court. 

" Lodgment in Court " means payment or transfer into Court, or 
deposit in Court : 

'Title of the cause or matter " means the short title of the cause or 
matter, with the reference to the record : 

'Ledger credit" means the title of the cause or matter and the 
separate account (if any) opened, or to be opened, under an order 
or otherwise, in the books of the paymaster, to which any funds 
are credited or to be credited : 

" Order " means an Order of ibhe Supreme Court of Judicature or of 
the High Court of Justice or Court of Appeal, whether made in 
Court or in chambers, and an Order in Lunacy, and iacludes a 
judgment or decree, and a report of a master ia lunacy, confirmed 
by fiat, and thereby receiving the operation of an order under the 
Lunacy Regulation Acts for the time being in force ; and a cer- 
tificate of a master in lunacy to be acted on without further order ; 
and includes the schedule or schedules to an order : 

"Direction" means any cheque, draft, or authority issued to the 
Bank of England, or to any other company, which relates to 
money or securities standing or to be placed to the Pay Office 
Account : 

"Court" means the Supreme Court of Judicature or the High 
Court of Justice, or any division thereof, or the Court of 
Appeal : 

" Registrar" means a registrar of the Chancery or of the Probate, 
Divorce, and Admiralty Divisions of the High Court of Justice ; 
and includes the officer whose duty it may be under the General 
Orders ia Lunacy for the time'ljeing in force to draw up and issue 
Orders in Lunacy : 

"Chief clerk's certificate" or "certificate of a chief clerk" means 
a certificate made by a chief clerk of the Chancery Division of 
the Court : 

" Taxing officer " (a) means a taxing master in the Chancery Division 
of the Court, and the master or person whose duty it is to tax the 
costs in the other divisions or in lunacy : 

"National Debt Commissioners" means the Commissioners for the 
Eeduction of the National Debt : 

In causes and matters proceeding in a district registry, master, chief 
clerk, and taxing officer means district registrar : 

Words importing the singular number only include the plural 
ntmiber, and words importing the plural number only include the 
singular number : 



SUPREME COTJET FUNDS RULES, 1884. 217 

"Words importing males include females. Supreme 

Court Funds 
(a) The term "taxing officer" includes "district registrar," -where the Court has Rules, 1884. 

directed, .taxation to be made by that officer, and the paymaster must act on Ms 

certificate of taxation accordingly. The costs of an action in a district registry 
however -wiU almost invariably be taxed in London ( Wilson r. AlUree, 27 Ch. D. 
242 ; Day v. Whittaker, 6 Oh. D. 734). 



II. Pbepasation of Oedebs in the Chanceet Division and in Lunacy 

TO BE ACTED ON BY THE PAYMASTER, AND PaeTICTTLABS EELATING 
THEEETO. 

4. The rules next following, numbered severally 5 to 27 iuclusive, Application 
shall apply only to causes and matters in the Chancery Division, and 27 inclusive, 
(so far as the same are applicable) to matters in lunacy. 

6. Every order which directs funds to be lodged in Court, shall have P'^?"^/"^ 
annexed thereto as part thereof a schedule, to be styled the Lodgment brought into 
Schedule, which shall be headed with the title of the cause or matter, '^°^ *° ''f'"'^ 
the date of the order, and the title of the ledger credit to which the gche^de. 
funds are to be placed ; and shall set out in a tabular form : — 

(a) The name, or a sufB.ciently identifying description of the person 
by whom the funds are to be lodged : 

(b) The amount of money and the description and amount of 
securities, if ascertained. 

The lodgment schedule shall be prepared upon a printed form accord- 
ing to the Form No. 1 in the Appendix to these rules, and as nearly 
as may be in the manner shown by the specimen entries appended to 
such form ; and may direct the investment and accumulation of the 
funds or the dividends or interest on the funds to be lodged. 

6. Every order which directs funds in Court to be paid, sold, trans- 9'^^?'^*°^ 
f erred, or delivered to any person, or carried over to any other ledger p^i^ o^t^ &o.. 
credit than that to which the same are standing, or to be otherwise to tave a 
dealt with by the paymaster, shall have annexed thereto as part schedule, 
thereof a schedule, to be styled the payment schedule, which shall 
be headed with the title of the cause or matter, the date of the order, 
and the ledger credit to which the funds dealt with are standing. 
The payment schedule shall contain as part of the heading a state- 
ment of the funds -with which, or with part of which, or with the 
interest or dividends on which the paymaster is to deal, describing 
them if already in Court as they appear in the paymaster's certificate, 
or if not already in Court stating the source from which they are 
to be derived. The payment schedule shall set out in a tabular 
form :— 

(a) The name of each person to whom a payment, transfer, or 
delivery of any funds is to be made (the name to be in full and 
the christian name to precede the surname) : unless the name is 
to be stated in a certificate of a chief clerk or a master in lunacy 
or a taxing oflElcer, or unless such payment, transfer, or delivery 
is to be made to trustees or other persons in suceession, or to 



218 



SUPREME COURT FUNDS RULES, 1884. 



Supreme 
Court Funds 
Rules, 1884. 



When a 
separate 
account is 
opened. 



When both a 
lodgment and 
payment 
schedule to 
be annexed. 



Separate 
schedule for 
each ledger 
credit. 



Instructions 
to paymaster 
to be solely 
contained in 
schedules., 



representatives when no probate or letters of administration sliall 
have been taken out at the date of the order : 
(b) The title of the ledger credit or separate account to which any 

funds are to be carried over : 
(o) The amount of money and the description and amount of the 
securities in each case to be paid, sold, transferred, or delivered, 
so far as the same can be then stated; and where the actual 
amounts to be dealt with cannot be ascertained at the date of the 
order, and are not to be subsequently ascertained by any means 
provided for by the order or by these rules, the aliquot parts to 
be dealt with : 
(d) The nature and necessary particulars of any other dealings with 

such funds by the paymaster. 
In the body of the schedule short descriptions may be used, and it 
shall not be necessary to add that the specific amounts dealt with form 
part of the larger amount of any like funds mentioned in the heading. 
The word " interest " in the schedule shall, unless otherwise specified, 
mean the dividends and interest on all the funds mentioned in the 
heading. 

The payment schedule shall be prepared upon a printed form 
according to the Form No. 2 in the Appendix to these rules, and as 
nearly as may be in the manner shown by the specimen entries 
appended to such form. 

7. When .funds in Court are by an order directed to be carried over 
to a separate account, the title of the ledger credit to be opened for 
the purpose shall, unless the order otherwise directs, commence with 
the title of the cause or matter to which such funds are standing. 

8. Every order which both directs or authorises the lodgment of 
funds in Court and also deals with such funds or any part thereof, or 
with any funds already in Court to the same ledger credit, shall have 
annexed thereto as part thereof a combined lodgment and payment 
schedule, in the Form No. 3 in the Appendix to these rules. 

9. When funds to be lodged in Court imder an order are by the 
same order directed to be placed to two or more ledger credits, separate 
lodgment schedules shall be made out for such respective ledger credits ; 
and when funds standing to two or more ledger credits are dealt with 
by the same order, separate payment schedules shall be made out for 
such ledger credits respectively. 

10. The lodgment and payment schedules, respectively, shaU. contain 
the whole of the instructions intended by the orders of which they 
severally form part to be acted upon by the paymaster, and all par- 
ticulars necessary to be known by him, so far as such instructions and 
particulars are capable of being expressed at the date of the order, and 
the paymaster shall only be responsible for giving effect to such in* 
structions so intended to be given by the order as are expressed in the 
lodgment or payment schedule thereto. The instructions and par* 
ticulars contained in a lodgment or payment Schedule shall not be set 



SUPREME COURT FUNDS RULES, 1884. 219 

forth, in the body of the order, hut shall only be therein referred to as Supreme 
appearing by the schedule, unless for any special cause it shall, in the ^^ ^^^ 

opinion of the judge by whom the order is made, or the registrar by ' ~ 

■whom the same is drawn up, be necessary to set forth some part of 
such instructions or particulars, both in the body of the order and in 
the schedule. 

11. "When an order directs any sums to be ascertained by the certi- Schedule to 
ficate of a chief clerk or taxing officer (h), or in any other manner, and s^g are^to 
to be afterwards dealt with by the paymaster, it shall be so expressed be aBoertained 
in the payment schedule ; and the paymaster shall deal with the ^y certificate, 
amount when ascertained on receipt of the necessary certificate, or 

other authority, which shall be retained by him. 

(J) See TFilson v. AUtree, 27 Ch. D. 242, cited in note (a) to r. 3. 

12. "When an order directs payment out of a fund in Court of any Certificate 
costs directed to be tax^ by a taxing officer (c), the taxing officer shall o^taxedoo^ts 
state in his certificate the name of the solicitor to whom such costs are 
payable, and the paymaster shall, upon production of such certificate, 

issue a direction for payment of the same to such solicitor. 

(c) See Wilson v. AUtree, 27 Ct. D. 242, cited in note (a) to r. 3. 

13. "When interest not directed to be certified is payable in respect Interest Low 
of any money in Court directed by an order to be dealt with by the ascertained, 
paymaster, there shall be stated in the payment schedule the rate per 

centum at which, and (if the day to which interest is payable can be 
fixed by the order) the day (inclusive) to which such interest is to be 
computed, and the amount of such interest (d). 

(d) This and the four following rules are taken with only slight alteration from 
r. 10 of the Chancery Funds Rules, 1874. 

14. If the day to which interest is payable cannot be fixed by the When the 
order, the day from which (exclusive) such interest is to be computed .^ to which 
sh.aU (except in the case of a computation of subsequent interest in the payable 
certificate of a chief clerk, or a master in lunacy) be stated in the pay- oannot be 
ment schedule, and such interest may be directed to be computed 

and certified by a chief clerk, or a master in lunacy, or (where the 
computation is dependent upon the taxation of costs) by a taxing 
officer (e). 

(e) See note (d) to r. 13. 

15. Interest certified by a chief clerk, or a master in lunacy, or a When interest 
taxing officer, may, unless the order otherwise directs, be computed oSe^olerk'^^ 
to a day subsequent to the date of the certificate and to be named &c., 
therein as the day for payment, so as to allow a reasonable time for 

doing all necessary acts to enable the payment to be made; and 
the chief clerk, or master in lunacy, or taxing officer, may, if he 
thinks fit, require a statement in writing of such computation, 
authenticated by the signature of the solicitor of the person having 



220 



SUPREME COUET FUNDS RULES, ia84. 



When interest 
to be ascer- 
tained by 
a£B.davit. 



Deduction of 
income tax 
from interest. 



Supreme the carriage of the order, to be produced before preparing the 
Rides "^4^ certificate, hut no affidavit verifying such computation shall be re- 

'■ qliired (/). 

(/) See note {d) to r. 13. 

16. When the day for payment is not fixed by the order, and the 
interest is not directed to be certified as in the last preceding rule 
mentioned, such interest shall, without any provision in the order 
for that purpose, be ascertained by an affidavit, or by a statutory 
declaration imder the Act 5 & 6 Will. 4, c. 62, in which case such 
interest shall be computed to a day (inclusive) to be named in such 
affidavit or declaration, as the day for payment ; which day shall not 
be more than fourteen days after the day of swearing such affidavit, or 
making such declaration ; and such affidavit or declaration shall be 
a sufficient authority to the paymaster to pay or apply the amount of 
interest so ascertained in the manner directed by such order {g). 

{g) See note (d) to r. 13. 

17. In every case in which interest is to be computed, income tax (if 
any) shall, in making such computation, be deducted therefrom at the 
rate payable during the time such interest accrues, unless the order 
otherwise directs ; and if income tax has been deducted, it shall be so 
stated in every such affidavit or declaration as is mentioned in the last 
preceding rule (h). 

(A) See note (d) to r. 13. 

18. Whenever the dealing by the paymaster with funds in Court is, 
by an order, made contingent upon the execution of some document, 
the document shall be described (»), and the parties thereto by whom 
it is to be executed shall be named in the payment schedule, or in a 
certificate of a master in lunacy or of a chief clerk. The execution of 
such document shall be certified by a master in lunacy, or by a chief 
clerk, or may be verified by affidavit, if the order by which such execu- 
tion is required shaU so direct (A). 

(«) See Se Clmgh, 32 L. T. 195. 

{ic) This rule is taken from r. 11 of the Chancery Funds Rules, 1874. 

19. When an order directs the payment of dividends, annuities, 
or other periodical payments, to be made by the paymaster, there 
shall be stated in the payment schedule (except in the case of 
dividends directed to be paid as they accrue due), the time when the 
first of such payments and all subsequent periodical payments, whether 
quarterly, half-yearly, yearly, or otherwise, are to be made (Z). 

{I) This rule is taken from r. 13 of the Chancery Funds Rules, 1874. 

20. When an order directs the payment, transfer, or delivery of 
funds in Court, in respect of which duty shall be payable to the 
revenue under the Acts relating to legacy or succession duty, and does 



Documents 
on which any 
dealings by 
the paymaster 
are made 
contingent to 
be described. 



Periodical 
payments. 



Legacy and 

succession 

duty. 



SUPEEME COURT FUNDS RULES, 1884. 221 

not direct tlie payment of such duty, it shall be stated in the payment Supreme 
schedule that such payment, transfer, or delivery is subject to duty, ^"^'^ ^^f' 

and in such case the paymaster is to have regard to the circum '■ '— 

stance that such duty is payable; and when by an order funds 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 duty" shall be added in the schedule to the separate 
account directed to be opened (m). 

(m) This rule is taken from r. 14 of the Chancery runds Rules, 1874. 

21. When a person to whom payment, transfer, or delivery of funds Payment, 
in Court is directed is entitled thereto as real estate, or as trustee, *™nsfer, or 
executor, or administrator, or otherwise than in his own right or for trustees &c. 
his own use, the fact that he is entitled to the same as real estate, or 

the character in which he is so entitled, shall be stated in the payment 
schedule to the order, or in the certificate of a chief clerk, or of a 
taxing officer, or of a master in lunacy (n). 

(«) This rule is taken from the first part of r. 53 of the Chancery Funds Rules, 
1874. 

22. When an order is made dealing in any way with funds in Court Draft sohe- 
or to be brought into Court in accordance with minutes agreed upon f™a°ed b 
by the parties, the solicitor of the party whose duty it is to procure party having 
the order to be drawn up and entered shall prepare and lodge with f'0'i°^""^f 
the registrar or other proper officer, for his consideration, draft lodg- 
ment and payment schedules, as the case may be, in the same form 

as the lodgment and payment schedules to an order, and containing 
the particulars so far as the same have been ascertained, which are 
required by these rules to be contained in the lodgment and payment 
schedules of the order. 

23. Every order which is to be acted upon by the paymaster shaU. Orders ho-w 
be drawn up and entered by the registrar, and shall either be wholly ^^^"^"^ ^^^ 
printed, or, in cases in which printed forms can be used, may be 

partly in print and partly in writing (o). 

(o) This rule is taken from the first part of r. 15 of the Chancery Eunds Rules, 
1874. 

24. The registrar shall cause a duplicate of every printed or partly Authentica- 
printed order and a further copy of the schedules thereto to be made rg^orTof 
at the same time with the original ; and the original order shall be orders, and 
passed by the registrar in the usual way, and togethei- with the ^^Jgfor"^^' 
further copy of the schedules thereto be stamped with his official seal paymaster. 
on every leaf thereof, and transmitted by him to the clerks of entries 

with the duplicate. The duplicate order shall be retained and filed 
by the clerks of entries as the record, and the origiual order and 
further copy of the schedules, when examined and stamped by them 
and marked with a reference thereon to the duplicate or record so filed, 
shall be returned to the registrar to be delivered out to the solicitor 



222 



eUPEEME COURT FUNDS EULES, 1884. 



Supreme 
Court Funds 
Bnles, 1884. 

Paymaster to 
act on copy of 
schedules. 



Additional 
copies of 
printed 
orders. 



Amendment 
of accidental 
errors in 
printed 
orders. 



having the carriage of the order, whose duty it Bhall be forthwith to 
leave such further copy of the schedules at the pay office. 

25. The copy of the schedules to an order left with the paymaster 
pursuant to the last precediag rule shall he the paymaster's authority 
for giving effect to the several operations directed therein. No part 
of the order other than the schedules thereto shall be left with the 
paymaster. 

26. The registrar may cause to be made or 'printed additional copies 
of orders or schedules according to the requirements of the parties or 
their soKcitors, and when such orders have been passed and entered, 
such additional copies shall be transmitted to the Central Office, and 
upon being duly completed and signed or certified by the proper officer, 
may be issued as office or certified copies. 

27. Clerical mistakes or errors, or accidental omissions in printed 
orders may be amended in writing; and every such amendment shaU. 
be stamped by the clerks of entries or other proper officer, with the 
official seal, as evidence that the duplicate or record has been also 
amended : Provided that no amendment shall be made in any order to 
provide for a new state of circumstances arising after the date of the 
order ; nor shaU any order be amended for the purpose of extending 
the time thereby limited for making any lodgment of funds in Court. 

When any such amendment is made in a schedule to an order, the 
copy of such schedule to be left at the pay office under rule 24 (if not 
already so left) shall be amended and stamped in the manner above 
provided. If such copy has prior to the amendment been left at the 
pay office, a notification of the amendment, signed by a registrar, 
shaU be delivered to the solicitor having the carriage of the order, who 
shall leave such notification at the pay office, and produce therewith 
the amended original order ; and the paymaster shall note such amend- 
ment on his copy of the schedule and act in accordance therewith (p). 

(p) The first part of this rule is taken from rule 16 of the Chancery Funds Eules, 
1874. 

[Eule 28 relates only to the Queen's Bench and Prohate Divisions.] 



All funds 
lodged in 
Conit to be 
placed to the 
account of the 
paymaster. 



Manner of 
lodgment of 
funds in 
Chancery 



IV. Lodgment of Fttods in Coitet. 

29. All money and securities to be paid into or deposited in Court 
shaU be paid or deposited at the Bank of England (Law Courts Branch) 
and placed in the books of the bank to the account of the Paymaster- 
General for the time being, for and on behalf of the Supreme Court of 
Judicature; and the bank shall cause a receipt to be given to the 
person making the payment or deposit. 

All securities to be transferred into Court shall be transferred to the 
said account in the books of the bank, or other company in whose 
books such securities are registered. 

30. In the Chancery Division a lodgment of funds ia Court not 
directed by an order may be made upon a direction to the bank or 
other company, to be issued by the paymaster on a request signed by 



SUPREME COURT FUNDS RULES, 1884. 223 

or on behalf of tte person desiring to make such lodgment : Provided Supreme 
that no such lodgment shall he placed in the pay office boots to a ^°^ "^f 

separate account in a cause or matter (except to a security for costs ^ 

aooount) unless an order has directed such separate account to be partSularsTo^ 
opened. ' te stated in 

A direction for a lodgment directed by an order shall be issued by "^^1"®^*- 
the paymaster upon receipt of a copy of the lodgment schedule ; and a 
direction for a lodgment under the Trustee Belief Act shall be issued 
by him, as provided by rule 41, upon receipt of an office copy of the 
schedule mentioned in that rule. 

The request for a direction under this rule shaU. state the name of 
the person by or on whose behalf the funds are to be lodged, the 
ledger credit in the pay office books to which the funds are to be 
placed, and the date of the authority or certificate (if any) in pursuance 
of which the funds are to be lodged. 

In cases of funds to *be lodged in pursuance of the Lands Clauses 
Consolidation Act, 1845, or of the Copyhold Acts, the further par- 
ticulars required under rules 39 and 40 shall be stated in the request. 
And when (otherwise than as hereinbefore provided) funds are lodged 
in Court in pursuance of an Act of Parliament, under which some specific 
authority is necessary for such lodgment, the request for a direction 
for lodgment shaU contain a reference to such Act and authority, and 
the requisite authority shall be left at the pay office. 

Except in the cases next mentioned, the requests under this rule 
shall be in the Forms No. 5 (for money) and No. 6 (for securities), in 
the Appendix to these Rules. 

When money is to be lodged (in any action brought to recover a Lodgment in 
debt or damages) under the provisions of Order XXII. or of Eule 26 aotiona^or 
of Order XXXI. of the Rules of the Supreme Court, 1883, the request debt or 
shaU. be iu the Form No. 7 in the Appendix to these Rules, and shall *"'*8'®^- 
contain a statement of the circumstances under which the money is to 
be lodged, in such of the following terms as may be applicable to the 
case, viz. : — 

(A.) When the money is to be lodged under the provisions of Rule 5 
of the said Order XXII., a statement in the foUowing terms : — 
" Paid in in satisfaction of claim of above-named [name of 
party]." 
(B.) When the money is to be lodged under the provisions of Rule 6 
of Order XXII., a statement in the foUowing terms: — "Paid 
in against claim of above-named [name o/^or^y], with defence 
denying liabUity." 
(C.) When the money is to be lodged under the provisions of Rule 26 
of Order XXXI., a statement in the following terms : — " Paid 
in to Security for Costs Account." 
31. When it is desired to bring money into Court in the Chancery Conditional 
Division without waiting the time necessary to obtain a direction for J^of^^atthe 
the bank to receive such money, it may be lodged at the bank to the bank in 

urgent oases. 



224 



SUPREME COURT FUNDS RULES, 1884. 



Supreme 
Court Funds 
Rules, 1884. 



credit of a Supreme Court Suspense Account (subject to being dealt 
with as hereinafter mentioned, and not otherwise), upon an applica- 
tion signed by the person desiring to lodge the same, or his solicitor, 
and addressed to the bank, specifying the amount, and the title of the 
ledger credit to which it is desired to be lodged, and upon such lodg- 
ment being made one of the cashiers of the bank shall give a certifi- 
cate that the amount has been lodged to the credit of the said Sus- 
pense Account ; and in every case the person making such lodgment, 
or his solicitor, shall forthwith req^uest the direction of the paymaster 
for the bank to receive the money in the manner provided by the last 
preceding rule, and shall leave such direction at the bank for the 
purpose of having the money so previously lodged transferred to the 
Pay Of&ce Account, and placed in the books of the Pay Office to the 
ledger credit mentioned in such direction (y). 

(j) This rule is taken from rule 31 of the Chancery Funds Rules, 1874. 

[Rule 32 relates to the Queen's Bench Division.] 

33. In every case of a lodgment in the Chancery and Queen's Bench 
Divisions under the provisions of the said Orders XXII. and XXXI., 
as provided in the preceding Rules 30 and 32, the paymaster shall 
cause an entry to be made in his books indicating the circumstances 
under which the money is stated to be lodged. 

[Rule 34 relates to the Prohate, &c. Division.] 

35. A request or authority for the issue by the paymaster of a 
direction for the lodgment of funds in Court may be sent to the pay- 
master by post, and, if so desired by the person sending the same, the 
paymaster shall send such direction by post to the address specified by 
such person. 

36. A person directed by an order in the Chancery Division to make 
a lodgment in Court shall be at liberty to make the same without 
further order, notwithstanding the order may not have been served, or 
the time thereby limited for making such lodgment may have expired; 
and a 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 lodge in Court such further sum upon a request as 
hereinbefore provided : Provided, that any such subsequent lodgment 
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 (r). 

(r) This rule is substantiaUy identical with rule 27 of the Chancery Funds Rules, 
1874. See rule 4 of the Chancery Funds Amended Orders, 1874, ante, p. 211. 

Upon receipt 37. When funds have been received by the bank, and when securities 

funds^direo" ^^'^® 'been transferred in the books of the bank or any other company 

tion to be to the Pay Office Account in accordance with a direction, the bank or 

retume to other company shall forthwith send such direction to the paymaster, 



Lodgments 
under Ords. 
XXII. and 
XXXI. to he 
distinguished 
in pay office 
hooks. 



Request and 
directions may 
be sent by 
post. 



Persons may 
bring funds 
into Court ia 
Chancery 
Division, 
though time 
limited by 
order has 
expired. 



SUPREME COURT FUNDS RUXES, 1884. 225 

■with a certificate thereon that the funds specified have been received Supreme 

or transferred as therein authorized. S°^ ^^^ 

oo T J.1- /Ti Rules, 1884. 

38. In the Chancery and Queen's Bench Divisions, when any direc- ;: 

tion or other authority for the lodgment of funds in Court is returned ^dgmeuuf 
to the Pay Office, with a certificate thereon that the funds therein l>e filed. 
mentioned have been lodged, the paymaster shall file at the Central 
Office a certificate of such" lodgment, and shall therein state the ledger 
credit to which such funds have been placed in the boots at the Pay 
Office ; and an office copy of such certificate of the paymaster shall be 
received as evidence of the lodgment («). 

(s) This is taken from rule 30 of the Ohauoery Funds Rules, 1874. 

39. Money lodged in Court in the Chancery Division pursuant to Wien money 
the 69th section of the Lands Clauses Consolidation Act, 1845, in respect ^^ ^P^^f^i 
of lands in England or Wales, shall be placed in the books at the 8 Vict. c. 18, 
Pay Office to the credit of ex parte the promoters of the undertaking, \^y' ^^" 
in the matter of the special Act (citing it), and some words shall be te stated. 
added in each case briefiy expressive of the nature of the disability to 

seU and convey, by reason of which the money shall be so paid in, 
which particulars shall be stated in the request for the direction to 
receive the money (t). 

{t) This rule is almost identical with rule 32 of the Chancery Funds Rules, 1874. 

40. Money lodged in Court in the Chancery Division pursuant to Money lodged 
the Copyhold Acts shall be placed in the books at the Pay Office to copvhold 
the credit of "Ex parte the Land Commissioners for England," and Acts to be 

of the particular manor in respect of which the money shall be so paid ^gggjiit^^ 
in ; and in the request for a direction to receive such money the name 
and locality of such particular manor shall be stated (m). 

. (m) This is taken from rule 33 of the Chancery Funds Rules, 1874. 

41. When a trustee or other person desires to lodge funds in Court Lodgments 
in the Chancery Division under the Act 10 & 11 Vict. c. 96, he shall 5?uatee ^ 
annex to the affidavit to be filed by him pursuant to the said Act a Relief Act. 
schedule in the same printed form as the lodgment schedule to an 

order, setting forth : — 

(a.) His own name and address : 

(b.) The amount of money and description and amount of securities 
proposed to be lodged in Court : 

(c.) The ledger credit to be opened iu the Pay Office books, in the 
matter of the particular trust, to which the funds are to be 
placed : 

(d.) A statement whether legacy or succession duty (if chargeable) 
or any part thereof has or has not been paid : 

(e.) A statement whether the money oi? the dividends on the securi- 
ties so to be lodged in Court, and all accumulations of dividends 
thereon, are desired to be invested in any and what description 



226 



SUPEEME COURTITINDS EULES, 1884. 



Supreme of Grovermnent securities, or wlietlier it is deemed unnecessary 

Eules 1884^ ^° *° invest the same. 

The paymaster, on receipt of an office copy of such schedule (which 

is to he retained by him), shall issue the necessary direction for giving 

effect to such lodgment (d). 

{v) This rule is taken from rule 34 of the Chancery Funds Eules, 1874, 9 Ch. yIiji ; 
but whereas that rule required the trustee to _file cm affldmit, setting forth certain 
things, this one requires him to annex to his affiiamit a schedule, setting forth certain 
things ; and the things to be set forth are not quite the same. As to the notice to 
be given of payment in (as required by rule S of the Chancery Funds Amended 
Orders, 1874), see Re Stening, W. N. (1884), 142, cited- ««<«, p. 53. The affidavit 
under the present practice should contain in the body of it a short description of 
the instrument creating the trust (Trustee Eelief Act, s. 1), and the names and 
addresses of the persons entitled {Re Stening) ; and the schedule to he appended 
should contain the particulars mentioned in this rule. 

Credit to 42. Any principal money or dividends received by the bank ia 

oeeds of "^secu- ^^^spect of securities standing to the Pay Office account shall be placed 
ritiesanddivi- in the books at the Pay Office, in the case of principal money to the 
he'plaoed ledger credit to which .the securities whereon such money arose were 
standing at the time of the receipt thereof, and in the case of divi- 
dends to the ledger credit to which the securities whereon such 
dividends accrued were standing at the time of the closing of the 
transfer books of such securities previously to the dividends becoming 
due (w). 
(w) This is taken from rule 35 of the Chancery Funds Eules, 1874. 

[Eule 43 relates to the appropriation in the Queen's Bench Division of money 
lodged under Ord. XIV.] 



Payment out 
of Court of 
money lodged 
in actions for 
debts and 



VI. Payment, Dblitert, and Tilansfee oe Puiroa out of Ootjbt, and 

OTHEB. dealings WITH PtTNDS. 

44. In the Chancery and Queen's Bench Divisions, when money has 
been lodged in actions for debts and damages under Orders XXH. 
and XXXI. of the Eules of the Supreme Court", 1883 (as described ia 
rules 30 and 32 of these Eules), and when and so far as money lodged 
under Order XIV. of the said Eules of the Supreme Court has been 
appropriated in the manner provided ia the last preceding rule, pay- 
ment of the money shall be made to the person in satisfaction of whose 
claim it has been lodged, or to the person otherwise entitled thereto, 
or, on the written authority of either such person respectively, to his 
solicitor, as under: — unless an order restraining such payment has 
been lodged at the Pay Office prior to the issue of the paymaster's 
direction for payment. 

(A.) When the money has been lodged or appropriated in satisfac- 
tion of a claim, under rules 30 (A.) and 32 (A.) of these Eules, or 
the last preceding rule, a direction for payment shall be issued by 
the paymaster upon a request in the Form No. 11 (A.) in the 
Appendix to these Eules. 
(B.) When the money has been lodged or appropriated against a 
claim, with a defence denying liability, under rules 30 (B.) and 



SUPEEME COURT PUNDS RULES, 1884. 227 

32 (B.) of these Eules, or the last preceding rule, a dii'ection for Supreme 
payment shaU. be issued by the paymaster upon receipt of a noti- ^^^ ^j^ 

fication that the plaintiff accepts the sum lodged in satisfaction, '■ 

and that due notice has been given of such acceptance, and upon 
a request for payment of the same ; such notification and request 
to be in the form No. 11 (B.) in the Appendix to these Eules. 
(C.) When the money has been lodged to a Security for Costs 
Account under rules 30 (C.) and 32 (0.) of these Eules, a direction 
for payment shall be issued by the paymaster upon receipt of a 
certificate of a taxing officer, master or chief clerk (as the case 
may be), as to the person who is entitled to have paid out to him 
the money so lodged (x). 
When a request is made for payment of money lodged on a notice 
or pleading, the original receipted notice or pleading must be pro- 
duced at the Pay Office. 

Except as in this rule is provided, the money so lodged or appro- 
priated as mentioned herein, shall only be paid out in pursuance of an 
order. 

(x) This paragraph (C.) was suhstituted for that originally contained in the rule 
by the Supreme Court Funds Eules (October), 1884, to take effect from and after 
October 24th, 1884 ("W. N. (1884), Pt. II. p. 495). 

45. Except as provided in the last preceding rule, and subject to the In otter cases 
provisions contained in rules 55, 56, 57, 70, 73, and 74, funds in Court dm^ -^th^ 
shall not be paid, delivered, or transferred out of Court, nor invested, only in pur- 
sold, or carried over unless in pursuance of an order, or in the case of ^^^^ ° *"* 
an investment of money or appKcation of dividends unless in pursu- 
ance of an authority contained in a certificate of a Master in 

Lunacy (y). 

(y) This rule is taken from rule 36 of the Chancery Funds Eules, 1874. A pro- 
spective order for payment out of sums hereafter to be paid in was made in He 
Chamberlain, 22 Beav. 286 ; Xambie v. Lamhie, 9 Ha. App. 84 ; but see Re Bowes, 
12 W. E. 569. For examples of prospeotire orders for sale of funds in Court, and 
payment to persons who would become entitled in the vacation, see Melden v. Sornby, 
W. N. (1870), 213. As to transfer from the English to the Irish Chancery, see 
Taughan t. Ma/rquia of Headfort, 5 Eq. 173. 

46. A duly-authenticated copy of every payment schedule in the A copy of 
Chancery Division and in Lunacy, and of every order in the Queen's ^S schedule 
Bench and Probate, Divorce and Admiralty Divisions which directs or order deal- 
funds to be dealt with, shall be left at the Pay Office, and shaU be f^^T'^ 
the paymaster's authority for the issue of directions giving effect to Court to be 

such orders. 1^^* ^^^^^ 

pay omce. 
In the Chancery Division it shall be the duty of the solicitor having 

the carriage of the order forthwith to leave such copy (as provided in 

rule 24). In the Queen's Bench and Probate, Divorce and Admiralty 

Divisions such copy shall be left by or on behalf of the person entitled 

to payment or interested in any other dealings with such funds directed 

or authorized by the order. 

q2 



228 



SUPEEME COURT ElINDS RULES, 1884. 



Supreme 
Court Funds 
Rules, 1884. 

Paymaster to 
prepare direc- 
tions giving 
effect to orders 
upon receipt 
of the neces- 
sary authority 
and informa- 
tion. 



Payments 
may be made 
by post. 



Paymaster's 
directions to 
be sufScient 
authority to 
the Bank or 
other com- 
pany. 



Discharge to 
paymaster. 



47. The directions of the paymaster for the payment of money 
under these rules, and for the delivery of securities out of Court in 
pursuance of an order shall he prepared by the paymaster forthwith, 
or from time to time, upon receipt of a copy of the order and any 
further necessary authority or information ; and except as provided in 
the next following rule such directions shall be delivered upon the 
personal application of the persons entitled thereto. 

Investments of money, transfers of securities out of Court, and 
carrying over of funds, in pursuance of an order, shall be made by the 
paymaster upon receipt of the necessary authority and iaformation. 

Sales of securities in pursuance of an order, of which a copy has 
been left at the pay oflS.ce, shall be made by the paymaster upon appli- 
cation by or on behalf of the persons interested therein, and such 
application may be sent by post. 

48. Any person residing within the United Kingdom entitled under 
an order to any dividend, annuity, or other periodical payment, and 
any person so resident entitled to any other payment not exceeding 

,6001., may obtain a remittance of the same by post, by sending to the 
paymaster a request in the Porm No. 12 in the Appendix to these 
Eules, attested by two witnesses, of whom one shall be a justice of the 
peace, a commissioner to administer oaths, or a clerk in holy orders, or 
notary pubKc. Upon receipt of such request (and, when necessary, of 
evidence of the fulfilment of any conditions of payment, as referred to 
in Eule 95), the pa3rmaster shall send by post to the address specified 
in the request a direction or other document by which payment may 
be obtained ; and such direction or other document shall be crossed; so 
as to be payable only through a bank : Provided that the paymaster 
may refuse to comply with any such request if he see reason for so 
doing, and provided also that the said transmission of such crossed 
direction or other document shall be at the sole risk of the person 
sending the said request. The proper attestation of the said request 
pursuant to this rule shall be sufficient evidence to the paymaster that 
the person making the request is the person named iu the order re- 
ferred to in such request. 

49. The directions of the paymaster issued under these rules (signed 
and countersigned by such officers as may be prescribed or approved 
by the Treasury, under Eule 107) shall be sufficient authority to the 
bank for the payment of the money specified in any such directions, 
and shall be the necessary and sufficient evidence of an order of the 
Court to authorize the bank or other company to transfer, on sale or 
otherwise, or to deliver, any securities standing to the pay office ac- 
count which may be specified in any such directions. 

50. A direction or other document by which payment of money is 
effected, when indorsed or signed by the payee or his lawful attorney, 
shall be a good discharge to the paymaster for the amount therein 
expressed (z). 

(«) A similar proyision was contained in rule 38 of the Chancery Funds Rules, 1874, 



SUPREME COURT FUNDS RULES, 1884. 229 

[Rule 51 applies to the Queen's Benoh Diyision.] Supreme 

-rrn. • /^ • i Court Funds 

02. Wiien money m Gouxt or any sum payable thereout is by an Rules, 1884. 
order directed to be paid to any public officer or department or to the 
official liquidator of any company, or any other official persons for p^mgntg jq 
whom an account is kept at the bank, payment thereof shall, on a official per- 
requisition to that effect, be made by a direction to the bank to transfer ^"de^^y^ 
the amount of such payment to the account at the bank of such public transfer, 
officer or official person accordingly. When any duty is directed to be 
paid out of funds in Court, such duty shall, without any words in the 
order to that effect, be assessed, and on a requisition made by or on 
behalf of the Commissioners of Inland Eevenue be transferred to the 
proper account at the bank (a), 

(a) The first part of this rule is taken from rule 41 of the Chancery Funds Rules, 
1874. 

63. When money in'Court is invested by purchase, the payment for Payments for 
such investment, which, unless otherwise ordered, shall include broker- purchased ; 
age, shall be made conditionally upon the transfer or deposit to the pay and transfers 
office account of the securities purchased. And when securities in g(ji^_ 
Court are sold, the transfer or deUvery of such securities shall not be 
made until the money proceeds of such sale, after deduction, unless 
otherwise ordered, of brokerage, shall have been paid to the pay office 
account. 

54. Upon an investment of money in Court or the sale of securities Accounts to 
in Court, the securities purchased by such investment or the money ^°^ ™ales'' 
realised by such sale, respectively, shaU in every case be placed to the &c. are to be 
ledger credit to which the money invested or the securities sold pre- credited. 
viously stood, unless, in the case of an investment, otherwise specially 

ordered. 

55. When securities in Court are directed to be transferred, dehvered Application 
out, or carried over, dividends accruing thereon subsequently to the aooruiag on 
date of the order directing the transfer, delivery, or carrying over (when securities 
the amount of the securities to be transferred, dehvered, or carried over '^^"^ ®"® * 
is specified in such order, or if not so specified then subsequently to 

the time when the amount of such securities shall be ascertained) shall 
be paid to the persons to whom or carried over to the ledger credit to 
which the securities are to be transferred, delivered, or carried over 
imless such order otherwise directs. When securities in Court are 
directed to be realised, and the whole of the proceeds paid out or carried 
over in one sum, or in aliquot parts (except when the realisation is to 
raise a specific sum of money), any dividends accruing on such securi- 
ties subsequent to the date of the order directing the reaUsation (i£ the 
amount of such securities is specified in the order, or if not so specified, 
then subsequently to the time when such amount shall be ascertained) 
shall be added to such proceeds, and appUed in Hke manner therewith. 
Unless such order otherwise directs (J). 

(i) This rule is substantially identical with rule 46 of the Chancery Funds Rules, 
1874. 



230 



SUPREME COUKT FUNDS EULES, 1884. 



Supreme 
Court Fuuda 
Rules, 1884. 

When such 
dividends 
have been 
inyested. 



When divi- 
dends other- 
wise appli- 
cable have 
been invested. 



Dividends on 
residue. 



Application 
of money or 
dividends 
placed on 
deposit after 
date of order 
dealing there- 
with. 



Application of 
interest on 
money placed 
on deposit 
after date of 
order direct- 
ing its invest- 
ment. 



56. When suet dividends as in the last preceding rule mentioned 
have pur